United States Court of Appeals
for the
District of Columbia Circuit
TRANSCRIPT OF
RECORD
TRANSCRIPT OF RECORD.
Court ofAppeals, DistrictofColu in bia
OCTOBER TERM, 1909.
No. 2057
66 5
FIDELITY STORAGE CORPORATION, JAMES L. KARRICK,
AND THE FIDELITY & DEPOSIT COMPANY OF MARY¬
LAND, APPELLANTS,
TRUSSED CONCRETE STEEL COMPANY.
APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
COURT OF APPEALS OF IHB EISTRICT OF COLUMBIA
OCTOBER TERM, 1909.
No. 2057.
FIDELITY STORAGE CORPORATION, A CORPORATION;
JAMES L. KARRICK, FIDELITY AND DEPOSIT COM¬
PANY OF MARYLAND, A CORPORATION, APPELLANTS,
V8.
TRESSED CONCRETE STEEL COMPANY, A CORPORATION.
APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
INDEX.
Original. Print.
Caption. a 1
Bill. 1 2
Complainant’s Exhibit No. 1—Estimate of cost of material.... 10 6
No. 2—Notice <>f lien. 11 7
No. 3- Letter of notification of lien. 12 7
Answer of Fidelity Storage Corporation. . 13 8
Answer of .lames L. Kairiek. 10 10
Motion for leave to file cross-bill, &c. 21 12
Order permitting cross-bill to l>e filed. 24 14
Cross-bill of James L. Karrick. 25 14
Answer of Fidelity Storage Corporation to the cross-bill. 33 19
Replication. 35 20
Answer of Trussed Concrete Steel Company to cross-bill. 36 20
Replication to answers to cross-bill. 39 22
Amendments to cross-bill. 40 23
Answer of Fidelity Storage Corporation to amended cross-bill. 43 25
Answer of Trussed Concrete Steel Company to amended cross-bill.. 44 25
Replication to answers to amendments to cross-bill. 48 27
Amended original bill. 49 28
Testimony on behalf of complainant. 50 28
Testimony of Hugo Magrini. 51 29
Testimony on behalf of defendants. . 108 55
Testimony of Janies L. Karrick. Ill 57
Gilbert S. Clark. 148 74
Percival H. Smyth. 176 85
Charles II. Sparshott. 207 98
Ambrose P. Gant. 226 106
Judd & Detweiler (Inc.), Printers, Washington, D. C., August 31, 1909.
n
INDEX.
Original. Print.
Testimony of Charles Gregg. 238 111
Henry M. Lanford. 283 122
Charles S. Hilbert. 289 124
David T. Cissell. 272 126
James L. Karriek (recalled). 285 131
Exhibit A—Sketch. 374 170
Testimony in rebuttal. 403 184
Testimony of Frank H. Sprouse. 404 184
Layton F. Smith. 429 195
Exhibit C. F. S. No. 4—Sketch. 493 op. 224
Eldridge R. Boyle. 495 224
Testimony in surrebuttal. 511 231
Testimony of James L. Karriek. 512 232
Exhibits. 533 242
Exhibit A. H. <i. 10A Minute book of the Fidelity Storage
Corporation. 533 242
J. L. K. No. 1 A—Specifications. 545 248
J. L. K. No. 2—Report of Weather Bureau. 555 253
Memorandum : Copy of contract !>et\veen the Trussed Concrete
Steel Company and Karriek is same as Exhibit No. 1 to bill. 560 256
Exhibit.!. I- K. No. 1— Contract bet ween the Fidelity Storage
Corporation and James L. Karriek. 561 257
Letter from Trussed Concrete Steel Co. to James I.. Karriek,
dated April 13, 1905 . 562 257
Letter from Trussed Steel Co. to Karriek, dated al>out April 14 . 563 257
Letter from J amt's L Karriek to Trussed Concrete Steel Co.,
dated May 6, 1905 . 564 258
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated May 18, 1905 . 565 258
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated May 20. 1905 . 566 258
Letter from Trussed Concrete Steel Co. to James L Karriek,
dated June 12, 1905 . 567 258
Letter from Trussed Concrete Steel Co. to Jas. L. Karriek, dated
June 19, 1905 . 568 259
Letter from Trussed Concrete Steel Co. to Jas. L. Karriek, dated
July 5, 1905. 569 259
Letter from Layton F. Smith to James L. Karriek, dated July
8, 1905 . 570 259
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 10, 1905. 571 259
Letter from James L. Karriek to Trussed Concrete Steel Co.,
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated July 12, 1905. 572 260
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 12, 1905 . 573 260
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated July 14, 1905. 574 260
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 18, 1905 . 575 261
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 21, 1905 . 576 261
INDEX
$
m
Original. Print
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 26,1905 . 578 262
Telegram from Trussed Concrete Steel Co. to James L. Karriek,
dated July 27, 1905. 578 262
letter from James L. Karriek to Trussed Concrete Steel Co.,
dated July 26, 1905 . 579 263
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 28, 1905. 580 263
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated July 29, 1905. 581 263
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated July 31, 1905. 582 264
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated August 5, 1905. 583 264
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated August S, 1905 . 583 264
Telegram from James L. Karriek to The Trussed Concrete Steel
Co., dated August 11, 1905. 584 264
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated August 12, 1905 . ... 564 265
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated August 17, 1905 . 585 265
letter from Trussed Concrete Steel Co. to James L. Karriek,
dated August 23, 1905 . 586 265
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated August 26, 1905 . 587 265
I-etter from James L. Karriek to Trussed Concrete Steel Co.,
dated August 28, 1905 . 588 265
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated August 30, 1905 . 589 266
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated September 1, 1905. 589 266
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated September 15, 1905 . 590 266
Letter from Trussed Concrete Steel Co. to Janies L. Karriek,
dated Septemlier 22, 1905. 591 267
Telegram from Trussed Concrete Steel Co. to James L. Karriek,
dated September 25, 1905..*. 592 267
Telegram from “ K.” to Mr. Smith, of Detroit. 592 267
letter from James L. Karriek to Trussed Concrete Steel Co.,
dated September 28, 1905. 592 267
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated October 2, 1905. 593 268
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated Octolier 4, 1905. 594 268
Letter from James L. Karriek to Layton F. Smith, dated Oeto-
l>er 12, 1905. 595 268
Letter from James L. Karriek to Trussed Concrete Steel Co.,
dated Octolier 14, 1905. 597 268
Letter from Trussed Concrete Steel Co. to James L. Karriek,
dated Octolier 16, 1905. 598 269
Letter from Layton F. Smith to James L. Karriek, dated Octo¬
ber 20, 1905. 599 270
IV
INDEX.
Original.
letter from Trussed Concrete Steel Co. to James L. Karrick,
dated Octoljer 24, 1905. (>00
Letter from James L. Karrick to Trussed Concrete Steel Co.,
dated October 25, 1905. 601
letters from Trussed Concrete Steel Co. to James L. Karrick,
dated October 27, 1905. 002
Letter from James L. Karrick to Trussed Concrete Steel Co.,
dated November 4, 1905 . 603
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated November 6, 1905 . 604
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated November?, 1905 . 604
Letter from James L. Karrick to Trussed Concrete Steel Co.,
dated November 9, 1905 . 605
Letter from James L. Karrick to Trussed Concrete Steel Co.,
dated November 9, 1905 . 606
Letter from James L. Karrick to Trussed Concrete Steel Co.,
dated November 10, 1905. 607
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated Novend»er 11, lt>05. 60S
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated Novemlier 11, 1905 . 609
Letter from Truseed Concrete Steel Co. to James L. Karrick,
dated November 13, 1905. 610
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated November 13, 1905. 611
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated November IS, 1905. 611
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated November 22, 1905 . 612
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated Noveml>er 25, 1905 . 612
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated December 2, 1905 . 613
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated December 7, 1905. 613
Letter from James L. Karrick to Trussed Concrete Steel Co.,
dated l>eceml>er 8, 1905 ... 614
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated December II, 1905 . 614
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated December 19, 1905. 615
Letter from Trussed Concrete Steel Co. to James L. Karrick,
dated December 27, 1905 . 615
Final decree. 616
Appeal noted and order for citation. 617
Citation. 618
Stipulation as to omitting plans from record on appeal. 619
Appellants’ designation of record. 620
Memorandum : Appeal bond approved and filed. 622
Appellee’s designation of record. 623
Memorandum : Time in which to tile transcript of record extended. 624
Clerk’s certificate.*. 625
Print.
270
270
271
271
272
272
272
272
273
273
273
273
274
274
274
274
274
275
275
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277
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279
280
280
281
281
In the Court of Appeals of the District of Columbia.
No. 2057.
Fidelity Storage Corporation et al., Appellants,
V9.
Trussed Concrete Steel Company.
a Original Bill.
Supreme Court of the District of Columbia.
No. 26091. Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
V9.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Larner, Trustees; Washington
Loan and Trust Company, a Corporation.
Cross-bill.
No. 26091. Equity Docket 58.
James L. Karrick
vs.
Trussed Concrete Steel Company, a Corporation; Fidelity
Storage Corporation, a Corporation; Albert A. W ilson and John B.
Larner, Trustees; Washington Loan and Trust Company, a Cor¬
poration.
United States of America,
District of Columbia, ss:
Be it remembered, That in the Supreme Court of the District of
Columbia, at the times hereinafter mentioned, the following papers
were filed, and proceedings had, in the above-entitled cause, to wit:
1—2057a
2
FIDELITY STORAGE CORPORATION ET AL. V9.
1 Bill.
Filed March 1, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. 26091. Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Larncr, Trustees; Washington
Loan and Trust Company, a Corporation.
The bill of complaint of the Trus>ed Concrete Steel Company
respectfully represents to the Court as follows:
1. It is a corporation duly incorporated under the laws of the
State of Michigan, having its habitat in the City of Detroit in said
State of Michigan, and brings this suit in its own right as herein¬
after set forth.
2. The defendant Fidelity Storage Corporation i.*» a corporation
duly incorporated under the laws of the State of Virginia, but hav¬
ing an office in the District of Columbia, and is sued in its own
right as hereinafter set forth. The defendant Janies L. Karrick is a
citizen of the United States and a resident of the District of
2 Columbia, and is sued in his own right as hereinafter set
forth. The defendants Albert A. Wilson and John B. Larner
are citizens of the United States and residents of the District of
Columbia and are sued its trustees under a deed of trust hereinafter
fully set forth; and the Washington Loan and Trust Company is a
corporation duly incorporated under the laws of Congress and had
its habitat in the District of Columbia and is sued as the beneficiarv
V
under the aforesaid deed of trust.
3. Heretofore, to wit. on the fifteenth dav of Februarv, A. D.
1905, the defendant James L. Karrick entered into a written con¬
tract with the complainant company whereby the complainant com¬
pany agreed to furnish and supply the said Karrick with certain
steel material described in >aid contract as Kahn Sheared bars, and
certain labor, required for and in the construction of a certain build¬
ing now belonging to the defendant Fidelity Storage Corporation
and more fully hereinafter described, for the sum of Fifteen Thou¬
sand, Five Hundred (15.500) Dollars; said steel to be furnished and
delivered “F. O. B. cars, Washington,” and the payments to the
complainant company under said contract by said Karrick were to
be made for each shipment thirty days, net cash, after the arrival of
the material at Washington; a copy of said contract marked “Com¬
plainants Exhibit No. 1” is hereto annexed and is to be taken and
read as a part of this bill of complaint. As will be seen by the in¬
spection of said contract, it was accepted by said Karrick, subject to
the approval of the defendant Washington Loan and Trust Com-
TRUSSED CONCRETE STEEL COMPANY.
3
pany or whoever advanced money on trust; also to the ap-
3 proval of the Building Inspector of the District of Columbia.
The said defendant Washington Loan and Trust Company
and Building Inspector did approve said contract and on or about
May 6, 1905, the said defendant Karrick informed the complainant
of such approval.
4. The complainant further alleges that at the date of the execu¬
tion of the contract referred to in the preceding paragraph of this
bill, there was vested in the defendant Karrick, according to the
Land Record* of the District of Columbia, the legal title to all of
original Lot Eighteen (IS) and tin' East Thirty (30) feet One and
one-half (IV2) inches front on 1 Street North by the full depth
thereof of original Lot Seventeen (17) in Square Two Hundred and
Five (205) situate in the City of Washington., District of Columbia;
and the steel material and labor provided by the complainant com¬
pany to the said Karrick under the aforesaid contract was to be used
and furnished in the construction of a storage warehouse then being
or about to be constructed upon the aforesaid piece* or parcels of
land. That in pursuance of A: in conformity with the aforesaid con¬
tract, and, as requested by the defendant Karrick, the complainant
company shipped the said material to the City of Washington and
the same was received by said defendant Karrick and, with said
labor, was used in the construction of *aid building, the first, of said
shipments being made on May* 11, 1905, and they continued until
all of the material called for bv the aforesaid contract had been
t
shipped to, received by said Karrick and placed in the aforesaid
building.
4 5. The complainant further alleges that by a deed dated
May 5, 1905, and recorded the same day among the Land
Records of the District of Columbia in Liber 2867, at folio 204, et
seq., the defendant James L. Karrick, together with his wife, con¬
veyed the aforesaid pieces and parcels of land to the defendant
Fidelity Storage Corporation, which, by a deed of trust bearing the
same date and recorded the same day among the said Land Records
as aforesaid deed, in Liber 2867, folio 205, et seq., conveyed the
said property to the defendants Albert A. Wilson and John B. Lar-
ner, Trustees, in trust to secure the defendant Washington Loan and
Trust Company the sum of Seventy-five Thousand (75,000) Dol¬
lars. Complainant alleges upon information and belief that the
said sum of Seventy-five Thousand (75.000) Dollars was agreed to
be lent by the defendant Washington Loan and Trust Company to
the defendant Fidelity Storage Corporation as a building loan and
for the purpose, in part, at least, of paying for the construction of
the aforesaid storage warehouse erected upon the aforesaid pieces
and parcels of land; and that said Seventy-five Thousand (75,000)
Dollars was to be advanced by the defendant Washington Loan and
Trust Company to the defendant Fidelity Storage Corporation in
periodical instalments and as said building progressed towards com¬
pletion, but this complainant is ignorant of the amount of such instal¬
ments or when, to whom and how paid, but alleges that it is entitled
to have discovery of these facts from said Washington Loan and
Trust Companv. It further alleges on information and belief that
4
FIDELITY STORAGE CORPORATION ET AL. VS.
the whole of said Seventy-five Thousand (75,000) Dollars has not yet
been paid by the Washington Loan and Trust Company, but
5 there still remains in its hands to be applied to said loan some
portion thereof, but how much is to this complainant un¬
known; however, it alleges that it is entitled to have discovery from
said Washington Loan and Trust Company of the amount so remain¬
ing unpaid.
6. The complainant further alleges that although it has, in good
faith, fully carried out and performed its aforesaid contract for said
steel material and labor, and has supplied or furnished all of it
and the same has gone into and has been used and furnished upon
the aforesaid building or storage warehouse, it has not been paid all
of the money contracted to be paid to it under the aforesaid contract,
but that there remains due and payable to it the sum of Four Thou¬
sand, Four Hundred and Fifty-seven and 84/100 (4457.84) Dol¬
lars with interest on Sixteen Hundred and Forty-three and 88/100
(1643.88) Dollars from Noveml>er 2, 1905; on Sixteen Hundred and
Forty-four and 36/100 (1644.36) Dollars from November 16, 1905
and on Eleven Hundred and Fifty-nine and 60/100 (1159.60)
Dollars from November 24, 1905 until paid; and said sum being
due and payable to this complainant as aforesaid, and not being paid,
it on February 2, 1906 caused to be filed in the Supreme Court of
the District of Columbia a notice of an intention to hold a mechanic’s
lien upon all the aforesaid pieces and parcels of land, together with
the building thereon; that said notice of lien is numbered 5397
and a copy thereof is hereto attached and marked ‘‘Complainant’s
Exhibit No. 2'*, and is to be taken and read as a part of this bill
of complaint. It also caused a copy of the aforesaid notice of
mechanic’s lien to be served upon the defendant Fidelity
6 Storage Corporation by serving the defendant .Tames L. Kar-
rick t os the Treasurer of said corporation. Tt also caused the
defendant Washington Loan and Trust Company to be notified
of its claim and lien and requested it to withhold from any payments
due by it under the aforesaid loan of Seventy-five Thousand (75,000)
Dollars a sum equal, at least, to the amount of the aforesaid lien.
A copy of the notice to said defendant Washington Loan and Trust
Company which was received by it and which was in the form of a
letter from the complainant’s attorney.^ is hereto attached, marked
“Complainant’s Exhibit No. 3” and is to be taken and read as part
of this bill of complaint.
7. The complainant is advised that it is entitled to have the afore¬
said pieces and parcels of land, together with the improvements
thereon, sold, if necessary, for the purpose of enforcing its aforesaid
lien and of paying the amount due to it as hereinbefore set forth,
and that it is also entitled to have a discovery from the defendant
Washington Loan and Trust Company as to the amounts paid by it
under the aforesaid building loan, and as well, the amounts remain¬
ing unpaid thereunder, and, therefore, it
TRUSSED CONCRETE STEEL COMPANY.
5
Prays
1. That United States writs of subpoma may issue directed to the
defendants herein, requiring them to appear and answer the exigen-
eies of this bill.
2. That the defendant Washington Loan and Trust Company be
required to discover what amounts it has paid on account of the
aforesaid loan of Seventy-five Thousand (75,000) Dollars, to
7 whom said payments were made, and at what times they were
made, and what sum or sums remain unpaid by it on account
of said loan.
3. That all accounts be taken under the direction of this Court as
may be necessary, and, for this purpose, all necessary references be
made to the Auditor of this Court.
4. That a decree be passed requiring the payment to the complain¬
ant of the amount of its aforesaid lien by such one or more of the
parties defendant as the Court may determine should make such pay¬
ment. and in default thereof, that the aforesaid land and premises be
sold for the purpose of enforcing complainant’s aforesaid lien and
paying the amount so decreed to be paid to it and appointing a trustee
or trustees for the purpose of making such sale.
5. And for such other and further relief as justice and the nature
of the ease may require.
TRUSSED CONCRETE STEEL COMPANY,
By JULIUS KAHN, Its President.
RALSTON and STDDONS, Sol’rs for Comp’t.
The defendants to this bill are: Fidelity Storage Corporation, a
Corporation; James L. Karrick. Albert A. Wilson, and John B.
Larner, Trustees; Washington Loan and Trust Co., a Corporation.
City of Detroit,
County of Wayne, State of Michigan, ss:
Julius Kahn being first duly sworn, on oath deposes and
8 says that he is the President of the Trussed Concrete Steel
Company, and as such has subscribed the foregoing bill of
complaint; that the matters and things therein stated upon personal
knowledge are true, and those stated upon information and belief he
believes to be true.
JULIUS KAHN.
#
Subscribed and sworn to before me, a Notary Public in and for the
Citv and State aforesaid, this 27th dav of February, A. D. 1906.
‘ [seal.1 BERTRAND R. PORTER,
« Notary Public ,
Notary Public Wayne County, Mich.
My Commission Expires Jan. 7, 1910.
6
FIDELITY STORAGE CORPORATION ET AL. VS.
Notarial Jurat.
No. 754.
State of Michigan,
County of Wayne, ss:
I, Louis W. Himes, Clerk of said County, and Clerk of the Circuit
Court for the County of Wayne, which is a Court of Record, having
a seal,
I)o hereby certify. That Bertrand R. Porter whose name is sub-
• « *
scribed to the Jurat of the annexed instrument, and therein written,
was, at the time of taking such Jurat, a Notary Public in and for said
County, duly commissioned and qualified, and duly au-
9 thorizcd to take the same. And. further, that I am well ac¬
quainted with the handwriting of such Notary Public, and
verily believe that (lie signature to the said Jurat is genuine.
In testimony whereof, 1 have hereunto set my hand and affixed
• / */
the seal of said Court and County, at Detroit, this 27th day of Febru¬
ary, A. D. 1906.
[seal.] LOUIS W. IITMES. Clerk ,
By JOHN V. TROLLOP!!,
Deputy Clerk.
10
Complainant’s Exhibit No. 1
We will deliver F. O. B. Cars Washington the necessary Kahn
sheared bars required in the construction of the eight lofts and roof
and footings as well as lintels oyer 1st story openings in front and
one in side walls of the Karrick Warehouse, sixty feet (00'-0") by
two-hundred feet (200'-0") supported on two division walls twenty
feet (20'-0") on center.-, the beams being seven feet (7'-0") on
centers, the floors designed for two hundred pounds (200) per sq. ft.
live load, the roof for forty pounds (40) per sq. ft. live load, for the
sum of .$15500.00 the steel will be delivered as desired F. O. B. Cars
Washington, payments to be made for each shipment thirty (60)
days net cash after arrival of material at Washington. We will also
furnish free of charge general supervision and all drawings neces¬
sary to show construction. We will also furnish a working foreman
to be in your employ, who will be under our instructions capable of
constructing the reinforced concrete work. Provided you will use
proper materials the construction which we design will be capable of
sustaining the test loads required by the Inspector of Buildings
namely three (6) times the live and one (1) time the dead load in
addition to its own weight. Should the footing reinforcement be
eliminated please deduct $500.00. *
(Signed) TRUSSED CONCRETE STEEL CO.
LAYTON F. SMITH, Mgr ..
2-15 ’05. Balto.. Md.
To James L. Karrick, Washington, D. C.
TRUSSED CONCRETE STEEL COMPANY.
7
Accepted subject to approval <>f W. L. T. Co. or whoever advances
money in trust also approval of Building Inspector of Wash’g, D. C.
Feb. 15th, 1905.
(Signed) JAMES L. KARRICK,
1333 G Street N. W.
11 Complainant s Exhibit No. 2.
Supreme Court, District of Columbia.
No. 5379.
Trussed Concrete Steel Company, Claimant, a Corporation,
vs.
Fidelity Storage Corporation, Owner, a Corporation.
Notice of Lien.
Notice is herein' given that we intend to hold a mechanic’s lien
upon all that piece or parcel of land known and described as and
being all of original hot numbered Eighteen (18) and the East
Thirty (30) feet One and one-half (IV 2 ) inches front on U Street
North by the full depth thereof, of original Lot numbered Seventeen
(17) in Square numbered Two Hundred and Five (205), situate in
the City of Washington, in the District of Columbia, and the build¬
ing thereon, for the sum of Forty-four Hundred and Fifty-seven and
84/100 (4457.84) Dollars with interest on Sixteen Hundred and
Forty-three and 88 H00 (1043.88) Dollars from November 2, 1905;
on Sixteen Hundred and Forty-four and 36/100 (1644.36) Dollars
from November 16. 1905; and on Eleven Hundred and Fifty-nine
and 60/100 (1 159.60) Dollars from November 24, 1905, until paid,
being amount due to claimant for labor upon and materials (steel
and labor) furnished for the construction of said building under
and bv virtue of a contract with James L. Karrick.
TRUSSED CONCRETE STEEL
COMPANY,
(Signed) By RALSTON and SIDDONS,
Its Attorneys , Claimant.
12 Complainant's Exhibit No. 3.
February 2, 1906.
Washington Loan and Trust Company, Washington, D. C.
Gentlemen: We beg to notify you that that we have this day
fled on behalf of the Trussed Concrete Steel Company of Detroit,
Michigan, a lien upon all of original Lot numbered 18 and the East
30 feet IV 2 inches front by the full depth thereof, of original lot
numbered 17, in Square numbered 205, this city, title to which, at
the present time, appears to be in the Fidelity Storage Corporation.
8
FIDELITY STORAGE CORPORATION ET AL. VS.
The lien is for the sum of $4457.° 1 with interest on $1045.88 from
November 2, 1905; on $1044.80 from November 16, 1905 and on
$1159.60 from November 24, 1905 until paid, and is for material
and labor furnished to and going into the building now standing on
the above mentioned property under a contract with Mr. James L.
Karrick. We understand that you made a building loan on th : s
property represented by a deed of trust to Messrs. A. A. Wilson and
John B. Larner, recorded May 5, 1905, last, securing $75,000, and
request that there will be withheld from any payments due bv you
under this loan, a sum at least equal to the above mentioned amount
of the lien filed this day. We understand the law now to be that
under circumstances such as are present in this case, you, as lender
of the money, must take notice of the existence of the lien in ques¬
tion.
Yerv trulv yours,
(Signed) ‘ RALSTON and SIDDONS,
Attorneys for Trussed Concrete Steel Co.
13 Answer of Fidelity Storaye Corporation.
Filed May 1, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. 26091. Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
V9.
Fidelity Storage Corporation, a Corporation ; James L. Karrick,
Albert A. Wilson and John B. Lanier, Trustees; Washington Loan
and Trust Company, a Corporation.
This defendant for answer savs—
V
1. Having no knowledge as to the truth of the matters contained
in the 1st Paragraph of the Bill of Complaint, it can neither admit
nor deny the same, although it says it has no reason to doubt the
truth of the statements therein contained.
2. It admits the allegations contained in Paragraph 2 to he true.
3. Upon information and belief it admits that the allegations in
Paragraph 3 are substantially correct.
4. This defendant admits that at the date of the execution of the
contract referred to in the 4th Paragraph, the title to the real estate
therein mentioned was vested in the defendant Karrick, but
14 says that the only knowledge it possesses as to the truth of the
remaining averments in said paragraph is derived from the
said defendant Karrick. and for greater certainty it refers to his
answer in this cause as to the facts in regard thereto.
5. It admits the averments contained in Paragraph 5 to be true.
6. It admits that the complainant filed in the Clerk's office of the
Supreme Court of the District of Columbia a notice of its intention
TRUSSED CONCRETE STEEL COMPANY.
9
to hold a mechanic’s lion upon (he real estate described in the bill
of complaint as therein alleged, but upon the advice of counsel it
denies that such notice of lien is sufficient upon which to base the
proceedings in this cause, for the reason that such notice does not
specifically set forth “the name of the party against whose interest a
lien is claimed’’ as required by the Code of Laws applicable to the
District of Columbia; and this defendant prays the same benefit from
this defense as if it had specifically demurred to the bill of complaint
on the ground last aforesaid. It admits that a copy of said alleged
lien was served upon it, and that notice thereof was served upon its
co-defendant the Washington Loan and Trust Company as alleged.
Answering the remaining portion of said paragraph, this defendant
says that it has no knowledge as to the alleged facts therein recited,
but upon information, it believes that the true facts in regard thereto
are correctly set forth in the answer filed bv its co-defendant Karriek
in this cause. Further answering, it says that it has deducted from
the compensation due the defendant Karriek under the contract pur¬
suant to which he erected the building described in the bill
15 of complaint, the sum of Twenty-five ($25) Dollars for each
day’s delay, during the period of seventy days mentioned by
him in the 6th Paragraph of his answer, and it says that the actual
loss to it has been very much greater than that sum.
7. This defendant denies that the complainant is entitled to have
the real estate mentioned in the bill of complaint sold for the pur¬
pose of enforcing its alleged lien, and upon information and belief,
it denies that there is anything due to it as set forth in the bill of
complaint.
And having fully answered it prays to be hence dismissed with its
reasonable costs in this behalf sustained.
FIDELITY STORAGE CORPORATION,
By DAVID J. BREWER, President,
ALAN 0. CLEPHANE,
Solicitor for Defendant, Fidelity Storage Corporation.
District of Columbia, ss:
I, David J. Brewer, upon oath say that I have read the foregoing
answer by me subscribed as President of the Fidelity Storage Corpo¬
ration, and know the contents thereof; that the matters therein
stated as of personal knowledge I know to be true, and those therein
stated upon information and belief I believe to be true.
DAVID J. BREWER.
Subscribed and sworn to this 30th day of April 1906.
[seal.] LLOYD A. DOUGLASS,
Notary Public, D. C.
10
FIDELITY STORAGE CORPORATION ET AL. VS.
16 Answer of James L. Karrick.
Filed May 1, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. 26091. Equity Docket 58.
Trussed Concrete Steel Company', a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Earner, Trustees; Washington Loan
and Trust Company, a Corporation.
This defendant for answer says:
1. Having no knowledge as to the truth of the matters contained
in the 1st Paragraph of the bill of complaint, he can neither admit
nor deny the same, although he says he has no reason to doubt the
truth of the statements therein contained.
2. He admits the allegations contained in Paragraph 2 to be true.
IE lie admits the averments of Paragraph 3 to be substantially
correct, but for greater certainty, refers to the original contract, a
copy of which is attached to said bill and marked “Complainant’s
Exhibit No. 1.”
4. He admits the truth of the averments contained in
17 Paragraph 4, but says that the material referred to in said
paragraph and in said contract was not delivered to him at
the times when he ordered the same to be delivered and as agreed in
said contract. On the contrary a portion of said materials was
shipped ami delivered to this defendant long before it was ordered or
needed, and other portions of the same were shipped and delivered to
him long after they were ordered or needed, causing great loss and
damage to this defendant as will hereinafter more fully appear.
5. He admits the averments contained in Paragraph 5 to be true.
6. He admits that the complainant filed in the Clerk’s office of
the Supreme Court of the District of Columbia, a notice of its inten¬
tion to hold a mechanic’s lien upon the real estate described in the
bill of complaint as therein alleged, but he denies upon the advice of
counsel that such notice of lien is sufficient upon which to base the
proceedings in this cause, for the reason that such notice does not
specifically >et forth “the name of the party against whose interest a
lien is claimed" as required by the Code of Laws applicable to the
District of Columbia; and he prays the same benefit from this de¬
fense as if he had specifically demurred to the bill of complaint on
this ground, lie admits that a copy of said alleged lien was served
upon him and that notice thereof was served upon his co-defendant
the Washington Loan and Trust Company as alleged. He denies
however that the complainant “has in good faith, fully carried out
and performed" its contract, and that there remains due and payable
TRUSSED CONCRETE STEEL COMPANY.
11
to it the sum of Four thousand four hundred and fifty-seven and
eighty-four one-hundredths ($4457.84) Dollars. On the
18 contrary ho says that although the contract a copy of which
is attached to the hill of complaint, provides that the steel
therein referred to should he delivered “as desired,” it was not so
delivered, hut certain steel bars which were ordered by this defendant
from said complainant under said contract were repeatedly delivered
not hent to shape as ordered by him; other steel material was not of
the proper size and description; the steel material for the second and
third floors of the building referred to in the contract, was shipped
together, although ordered separately, involving this defendant in
great inconvenience and in extra expense in storing and caring for
same; the steel material for the fourth and fifth floors was also
shipped together, after this defendant had protested against the for¬
mer combined shipment as aforesaid, and although it had been
ordered by this defendant to he shipped separately, and again in¬
volving this defendant in great inconvenience and extra expense in
storing and caring for same; the steel material for the sixth and all
remaining iioors, as well as for the roof, was greatly delayed in ship¬
ment beyond the time when ordered and beyond the time promised
by the said complainant, which resulted in delaying the building
operations of said building until freezing weather set in, although
the said complainant had been repeatedly warned by this defendant
that such delay would entail great additional expense upon him.
The delay in delivering the said steel work until after freezing
weather set in forced this defendant to incur a large additional ex¬
pense in doing the concrete work in said building, which is largely
erected of concrete around a steel frame construction, in ac-
W cordance with the plans and specifications therefor with the
details of which the complainant was familiar at the time of
entering into said contract; and although this defendant used every
mean- in lii.s power to get the said building under roof at an early
a date as possible, employing every reasonable device for that pur¬
pose known to the building trade, he was not able to get the build¬
ing under roof for seventy days after he would have been enabled
to do so had it not been for the delay in delivering the steel work
aforesaid. Furthermore.’ although the said contract provided that
the said -tool work should be delivered freight prepaid to Wash¬
ington. it. was not so delivered, but the freight bills were charged
to this defendant, and he was obliged to pay the same. Further
answering thi< paragraph this defendant says that under the terms
of the contract with his co-defendant Fidelity Storage Corporation,
he has incurred a loss in his contract price for building said build¬
ing for the corporation last aforesaid, of Twenty-five ($25) Dollars
for each of the seventy days during which he was delayed in his
construction on account of the failure to deliver promptly the said
steel work as agreed. And this defendant says that the delay afore¬
said has entailed upon him a loss of more than Five thousand
($5000) Dollars, which more than counterbalances the amount
claimed by the said complainant to be due to it. And this defendant
savs that lie will ask the leave of this Honorable Court to file a cross-
12
FIDELITY STORAGE CORPORATION ET AL. VS.
hill in this cause claiming from .-aid defendant the balance due to
him as aforesaid.
7. This defendant denies that the complainant is entitled to have
the real estate hereinabove mentioned sold for the purpose of
20 enforcing its alleged lien, and he denies that he owes the said
complainant any amount whatsoever.
And having fully answered he prays to he hence dismissed with
his reasonable costs in this behalf sustained.
JAMES L. KARRICK.
WALTER C. CLEPHANE,
Solicitor for Defendant, James L. Karriclc.
District of Columbia, ss:
1 do solemnly swear that I have read the foregoing answer hv me
subscribed and know the contents thereof and that the matters and
things therein stated upon my personal knowledge are tme and those
therein stated upon information and belief I believe to he true.
JAMES L. KARRICK.
Subscribed and sworn to before me this 30th day of April 1906.
[seal. | LLOYD A. DOUGLASS,
Notary Public, D. C.
21 Motion for Leave to File Cross-bill , See.
Filed May 1, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. 26091. Equity Docket.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Earner, Trustees; Washington
Loan and Trust Company, a Corporation.
Comes now the defendant James L. Karrick and moves this Hon¬
orable Court for an order granting him permission to file a cross¬
bill in the above entitled cause in the form stated in the copy of
said proposed cross-bill which is appended hereunto, and also for
leave to have a subpeena commanding the complainant herein to
answer said cross-bill served upon the solicitors of record for said
complainant, to wit: Messrs. Ralston & Siddons. and that said com¬
plainant. be required to appear and answer said cross-bill within
thirty days after the service of the subpoena to answer same.
The reason why leave is prayed to file the cross-bill hereinabove
referred to is that the defendant Karrick claims that instead of there
being any indebtedness due by him to the complainant Trussed Con-
TRUSSED CONCRETE STEEL COMPANY.
13
crete Steel Company growing out of the contract which forms
2*2 the basis of said complainant’s suit, the said complainant by
reason of its violation of said contract has damaged the said
defendant to the extent of a large amount of money, as shown in
the copy of the nroposed cross-bill.
And the reason why leave is prayed to have service of the subpoena
to answer said cross-bill made upon the solicitors for the said com¬
plainant is that said complainant is not a resident of the District of
Columbia and maintains no ofliee or agent therein, and that unless
service should be made upon said complainant through its said solic¬
itors, there will he no way to effect a service upon said complainant.
WALTER Cl CLEPIIANE,
Solicitor for Defendant Karrick.
Take notice that on Fridav, the 4th day of May, 1906, at the hour
of 10 o'clock A. M. or as soon thereafter as counsel can be heard,
I shall call the above motion to the attention of the Court and ask
for the passage of an order based thereupon.
WALTER C. CLEPIIANE,
Solicitor for Defendant Jas. L. Karrick.
To Messrs. Ralston A Siddons, Solicitors for Complainant, Trussed
Concrete Steel Company.
District of Columbia, ss:
Janies L. Karrick being first duly sworn deposes and says that he
has read the proposed cross-bill, a copy of which is attached
23 hereunto, and knows the contents thereof, and that the mat¬
ters and things therein stated of his own personal knowledge
are true, and those therein stated upon information and belief he
believes to be true.
Afiiant further says that to the best of his knowledge, information
and belief the Trussed Concrete Steel Company which is named as
one of the defendants in said proposed cross-hill, and which is the
complainant in the original suit maintains no ofliee or agent in the
District of Columbia, and there is no one representing its interests
in said District except its solicitors in this case, Messrs. Ralston &
Siddons.
JAMES L. KARRICK.
Subscribed and sworn to before me this 30th day of April, 1906.
[seal.] LLOYD A. DOUGLASS,
Notary Public, D. C.
14
FIDELITY STORAGE CORPORATION ET AL. VS.
24 Order Permitting Crow-bill to be Filed.
Filed May 29, 1900.
In the Supreme Court of the District of Columbia, Holding a
Special Term for Equity Business.
Xo. 26091. Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Earner, Trustees; Washington Loan
and Trust Company, a Corporation.
Upon consideration of the motion of the defendant James L.
Karrick for leave to tile a cross-bill ami for substituted service of the
subpu'iia to answer same upon Messrs. Ralston A: Siddons, solicitors
for the Trussed Concrete Steel Company, and the affidavit and ex¬
hibit tiled in connection with such motion, it is this 29th dav of
May, 1906, ordered that the said defendant James L. Karrick be
ami he is hereby given permission to tile a cross-bill in the form
submitted by him in connection with bis said motion, and that
service of the sub] urn a to answer said cross-bill may be served upon
the Trussed Concrete Steel Company aforesaid by service upon its
solicitors in this case, Messrs. Ralston A Siddons. And it is further
ordered that said Trussed Concrete Steel Company answer the said
cross-bill within thirty days after the date of the service of
25 said subpoena upon its said solicitors.
By the Court. IIARRY M. CLABAUGH,
Chief Justice.
Cross-bill of James L. Karrick.
Filed May 29, 1906.
In the Supreme Court of the Distriet of Columbia, Holding a
Special Term for Equity Business.
Original Bill Xo. 26091. Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Earner, Trustees; Washington
Loan and Trust Company, a Corporation.
Cross-bill Xo. 26091. Equity Docket 58.
James E. Karrick
vs.
Trussed Concrete Steel Company, a Corporation; Fidelity
Storage Corporation, a Corporation; Albert A. Wilson and John
B. Earner, Trustees; Washington Loan and Trust Company, a
Corporation.
To the Supreme Court of the District of Columbia, holding
26 an equity court:
Your complainant Janies E. Karrick who is named as a
party defendant in the original bill of complaint filed herein, with
TRUSSED CONCRETE STEEL COMPANY.
15
leave of the Court first had and obtained, files this his cross-bill, and
states as follows:
1. He is a citizen of the United States and a resident of the Dis¬
trict of Columbia and files this cross-bill in his own right.
2. The defendant Trussed Concrete Steel Company, as your com¬
plainant is informed and believes and therefore alleges, is a corpora¬
tion created and existing under the laws of the State of Michigan,
* but is represented in this cause by its solicitors, Messrs. Ralston &
Siddons, who are residents of the District of Columbia, and practi¬
tioners at the Bar of this Honorable Court. Said Trussed Concrete
Steel Company is sued in its own right as hereinafter set forth. The
defendant Fidelity Storage Corporation is duly incorporated under
the laws of the State of Virginia, but has an office in the District of
Columbia, and is sued in its own right solely because it is made a
party defendant in the original hill as hereinafter recited. The
defendants Albert A. Wilson and John B. Larner are citizens of the
United States and are residents of the District of Columbia, and are
sued as Trustees under a deed of trust hereinafter referred to. The
defendant Washington Loan and Trust Company is a corporation
duly crated and existing under the laws of Congress, and has its
habitat in the District of Columbia and is sued as a beneficiary under
the said deed of trust.
27 8. Heretofore, to-wit: on the first day of March,
1906, the said Trussed Concrete Steel Company filed its
bill of complaint against this complainant and the other par¬
ties mentioned in the next preceding paragraph, stating that
on the loth day of February, 1905, this complainant entered
into a written contract a copy of which is annexed to the
original bill of complaint marked “Complainant’s Exhibit
No. 1,” in and by which the said Trussed Concrete Steel Company
agreed to furnish and supply this complainant as desired certain
steel material necessary to construct a storage warehouse building
for the defendant Fidelity Storage Corporation, upon Original Lot
Eighteen (18) and the east thirty (80) feet one and one-half (IV 2 )
inches front on U Street North by the full depth thereof of Original
Lot Seventeen (17) in Square Two hundred and five (205) in the
City of Washington, District of Columbia; that said steel work was
furnished by said Company, but that this complainant did not fully
pay for the same, leaving a balance due to said Company of Four
thousand four hundred and fifty-seven and eighty-four one-hun¬
dredths ($4457.84) Dollars with interest as therein claimed; that
the title to the real estate hereinabove mentioned was conveyed on
May 5th, 1905 to the defendant Fidelity Storage Corporation, which
by a certain deed of trust conveyed the said property to the defend¬
ants Wilson and Larner, trustees, in trust to secure the defendant
Washington Loan and Trust Company the sum of Seventy-five
thousand ($75,000) Dollars which was to be paid to the defendant
Fidelity Storage Corporation as a building loan in instalments as
said building progressed, and that the whole of said Seventy-
28 five thousand ($75,000) Dollars had not yet been paid. Said
bill of complaint also alleged that the complainant therein
16
FIDELITY STORAGE CORPORATION ET AL. VS.
had filed a mechanic’s lien against the said real estate to secure it
for the unpaid balance claimed to be due to it as aforesaid, and had
notified this complainant and the defendants Fidelity Storage Cor¬
poration and Washington Loan and Trust Company of the filing
of such lien. The said bill prayed for a discovery as to the amount
paid on account of said building loan, and for a decree in favor of
the complainant for such amount as might be found to be due to
it. and in default thereof that the aforesaid land and premises might
be sold for the purpose of enforcing the complainant’s alleged lien.
4. This complainant and the Fidelity Storage Corporation there¬
upon answered said bill of complaint, the answer of this complainant
reciting that instead of there being due any sum whatsoever from
him to the complainant in the original bill, the complainant in the
original bill was indebted to him in a large sum of money.
o. Xo replication has as yet been filed, and no additional pro¬
ceedings have been had in said cause.
6. This complainant further shows to this Honorable Court that
he did enter into the contract hereinabove referred to, and that the
Trussed Concrete Steel Company did furnish certain material to this
complainant as therein contracted for. Rut this complainant says
that such material was not delivered as desired by him as it was in
said contract agreed should be done, but that on the contrary certain
steel bars which were ordered by him from said Company were
repeatedly delivered not bent to shape as he had ordered;
20 other steel work was not of the proper size and description;
the steel material for the second and third floors of the build¬
ing hereinabove referred to was shipped together, although ordered
separately by him. involving him in great inconvenience and extra
expense in storing and earing for the same; the steel material for
the fourth and fifth floors of said building was also shipped together,
after he had protested against the former combined shipment as
aforesaid, and although it had been ordered by this defendant to be
ship|>ed separately, again involving him in great inconvenience and
extra expense in storing and caring for same. The steel material
for the sixth and all remaining floors, as well as for the roof was
greatly delayed in shipment beyond the time when he ordered it
and when it was promised by the said Company it should be delivered,
which resulted in delaying the building operations on said building
until freezing weather set in. although the said Company had been
repeatedly warned by him that such delay would entail great ad¬
ditional expense upon him. The delay in delivering the said steel
work until after freezing weather set in involved this complainant
in extra expense in doing the concrete work in said building, which
said building is largely erected of concrete around a steel frame con¬
struction in accordance with the plans and specifications therefor
with which the said Trussed Concrete Steel Company was perfectly
familiar at the time said contract was entered into. And although
this complainant used every means in his power to get the said
buildings under roof at as early a day as possible, employing every
reasonable deviee for that purpose known to the building
30 trade, he was not able to accomplish this for seventy days
after he would otherwise have been enabled to do it had it
not been for the delay in delivering the steel material aforesaid.
TRUSSED CONCRETE STEEL COMPANY.
17
7. Furthermore this complainant says that although the contract
aforesaid provided that said steel material should be delivered freight
prepaid to Washington, it was not so delivered, but the freight bills
were charged to this complainant, and he was obliged to pay the
same.
8. This complainant also says that under the terms of the contract
tlmt his co-defendant Fidelity Storage Corporation he has incurred
a loss in his contract price for building said building, of Twenty-
five ($25) Dollars for each of the seventy days during which he was
delayed in its construction on account of the failure to promptly
deliver the said steel material as agreed upon.
0. And this complainant further says that the delay aforesaid has
entailed upon him a loss of Five thousand two hundred and fifty-
three and fifty-five one-hundredths ($5253.55) Dollars, as is set
forth in detail in the following items:
Delay Nov. 15 to .Jan. 25, 70 days; loss under contract with
Fidelity Storage Corporation, $25 per day. $1750.00
Use of hoisting and concrete plant 70 days at $0 per day. 630.00
Watchman 70 days at $1.50. 105.00
Coal for heating. 35.00
Stoves canvas and straw. 52.60
Extra forms. 1350.00
Addition of 25'A to cost of concrete labor $1442. . 360.00
31 Foremen of concrete 70 da vs. 280.00
a.-
Complainant Karrick’s time, 70 days at $5. per
day.;. 350.00
Blacksmith work . 24.00
Foreman of carpenters V* of $3.00 for 70 days. 105.00
Freight on 7th floor material. 53.00
Freight on 8th floor material. 53.43
Freight on 9th floor material. 52.08
Freight on roof material. 53.44
$5253.55
10. This complainant further says that there is due to him from
the said defendant Ta/ssed Concrete Steel Company the sum of Five
thousand two hundred and fifty-tree and fifty-five one-hundredths
($5253.55) Dollars with interest from .January 25, 1906, as indi¬
cated in the foregoing itemized statement, which he is willing to
have set off against the claim of the said Company as set forth in its
original bill of complaint.
Wherefore your complainant prays:
1. That the United States writ of subpoena may issue to the de¬
fendants who are Trussed Concrete Steel Company, a corporation,
Fidelity Storage Cor|x>ration, a corporation, Albert A. Wilson and
John B. Earner, Trustees, and Washington Loan and Trust Com¬
pany, a corporation, requiring them to appear and answer, but with¬
out oath the exigencies of this cross-bill, an answer under oath being
hereby specifically waived; and that service of said subpoena to an¬
swer this cr*» '-bill may be made upon said defendant Trussed Con-
2—2057a
18
FIDELITY STORAGE CORPORATION ET AL. VS. *
cretc Steel Company by serving the same upon its said so-
32 Heitors, Messrs. Ralston & Siddons.
2. That all accounts mav he taken under the direction of
this Court as may be necessary, and for this purpose, all necessary
references be made to the Auditor of this Court.
3. That a decree be passed requiring the payment to this com¬
plainant of the amount which may be found to be due to him as
aforesaid.
4. And for such other and further relief as justice and the nature
of the case may require.
The defendants to this cross-bill are Trussed Concrete Steel Com¬
pany, a corporation, Fidelity Storage Corporation, a corporation,
Albert A. Wilson and John B. Larner, Trustees, Washington Loan
and Trust Company, a corporation.
JAMES L. KARRICK.
WALTER C. CLEPHANE,
Solicitor for Complainant in Crow-bill.
District of Columbia, 8 s :
James L. Karrick being first duly sworn on oath says that he
ha? read the foregoing cross-bill by him subscribed and knows the
contents thereof; that the matters and things therein stated of his
own personal knowledge are true and those therein stated upon in¬
formal ion and belief he believes to be true.
JAMES L. KARRICK.
Subscribed and sworn to before me this 30th day of April 1906.
[seal.] LLOYD A. DOUGLASS,
Notary Public, D. C.
33 Memorandum.
The form of cross-bill attached to the motion for leave to file
and referred to in the order granting said motion is a copy of this
original cross-bill. (See page 25 of this transcript.)
TRUSSED CONCRETE STEEL COMPANY.
19
Answer of Fidelity Storage Corporation to the Cross-Bill.
Filed June 12, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
Original Bill No. 26091. Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Earner, Trustees; Washington Loan
and Trust Company, a Corporation.
Cross-bill No. 26091. Equity Docket 58.
James L. Karrick
vs.
Trussed Concrete Steel Company, a Corporation; Fidelity
Storage Corporation, a Corporation; Albert A. Wilson and John
B. Earner, Trustees; Washington Loan and Trust Company, a
Corporation.
For answer to said cross-bill this defendant savs:
c/
1, 2, 3, 4, 5. It admits the allegations of Paragraphs numbered
1 to 5 both inclusive, to bo true.
34 6, 7. This defendant, upon information and belief, admits
the allegations of Paragraphs numbered 6 and 7 to be true.
8. Answering Paragraph 8 this defendant says that it has deducted
from the compensation due to James L. Karrick under his contract
with this defendant to build a storage warehouse upon its property,
the sum ot Twenty-five ($25) Dollars for each and every day of
delay beyond the 15th day of November. 1905, until said building
was placed under roof, to wit: On January 24, 1906; that under
the building contract between said Karrick and this defendant, it
was provided that for each day’s delay in the completion of said
building beyond the 15th day of November aforesaid the said
Karrick should pay to this defendant the sum of Twenty-five ($25)
Dollars by way of liquidated damages. This defendant says that
during the period from November 15th, 1905, to January 24, 1906,
it was unable to derive any revenue from said building, although
had the said building been under roof on the 15th day of November,
1905. it would then have been able to have rented rooms therein
for storage purposes and to commence to derive a revenue there¬
from ; that the actual loss to this defendant bv reason of said delav
was greater than the sum of Twenty-five ($25) Dollars per day, but
inasmuch as the sum of Twenty-five ($25) Dollars per day had
been agreed upon between said Karrick and this defendant as liqui¬
dated damages, that sum, amounting to Seventeen hundred and
20
FIDELITY STORAGE CORPORATION ET AL. VS.
fifty ($1750) Dollars in all, is i ll that has been deducted by it
from the contract price due said Karrick.
35 9. 10. This defendant, upon information and belief, ad¬
mits the allegations of Paragraphs numbered 9 and 10 to be
true.
ALAN O. CLEPHANE,
Solicitor for Defendant,
Fidelity Storage
DAVID J. BREWER.
Corporation.
District of Columbia, s$:
I, David J. Brewer, upon oath say that 1 have read the foregoing
answer by me subscribed as President of the Fidelity Storage Cor¬
poration, and know the contents thereof; that the matters therein
stated as of personal knowledge I know to be true, and those therein
stated upon information and belief I believe to be true.
DAVID J. BREWER.
Subscribed and sworn to this 11th day of June 1905.
[seal.] JNO. C. ATIIEY,
Notary Public, D\ C.
Replication.
Filed July 12, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. 26091, Equity Doc.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
36 The complainant hereby joins issue with the defendants
Fidelity Storage Corporation. James L. Karrick and Wash¬
ington Loan and Trust Company upon their answers filed herein.
RALSTON A: SIDDONS,
Solicitors for Complainants.
Answer of Trussed Concrete Steel Co. to Cross-Rill.
Filed July 23, 1906.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. 26091. Equity Docket.
Trussed Concrete Steel Company
V3.
Fidelity Storage Corporation et al.
Reserving to itself all manner of exception and objection to
the allegations of the cross-bill of the original defendant, James L.
TRUSSED CONCRETE STEEL COMPANY.
21
< Karrick, the original complainant. Trussed Concrete Steel Company,
for answer to the same, respectfully represents to the Court as
* follows:
1 and 2. It admits the allegations of piiragraphs one and two of
said cross-bill.
3. Answering paragraph three of said cross-bill this defendant
alleges that it believes that the allegations of said paragraph state
■ in substance the purpose, object and allegations of the original bill
of complaint filed herein by this defendant, but for greater certainty
t on this point it refers to and makes a part, of this answer its said
original bill.
37 4. Answering the allegations of paragraph four of said
cross-bill, it believes them to be true, but refers, for greater
certainty, to the answers of the said James L. Karrick and Fidelity
Storage Corporation to the original hill of complainant filed herein.
5. Answering paragraph five of said cross-bill this defendant avers
that since it was filed, this defendant has filed a replication to the
answers of the defendants to the original bill of complaint.
0. Answering m> much of paragraph six of said cross-bill as this
defendant is advised it is material and necessary for it to answer,
it avers, repeating in this connection the allegations of its original
hill of complaint, and in denial of the allegations contained in said
paragraph six of' the cross-hill, that it did deliver as required by its
contract with the defendant James I.. Karrick, the material to be
furnished by it to him as desired by him. It denies the allegations
of said paragraph six to the effect that certain steel bars ordered
' by said Karrick from this defendant were repeatedly delivered not
bent to shape as ho had ordered; or that other steel work furnished
by it to him under said contract was not of the proper size and de¬
scription ; or that deliveries that were made of the material contracted
to be delivered by it to said Karrick were not shipped as required.
But. on the contrary, this defendant avers that it fully complied
with the terms of its contract with said Karrick referred to in said
paragraph six. and it denies that any of its actions in the per¬
formance of said contract involved said Karrick either in
38 great inconvenience or extra expense, and, if material, de¬
mands strict proof of said allegations of paragraph six. It
denies that any material was greatly delayed in shipment by this
defendant to said Karrick, but says, on the contrary, that it made
unusually prompt deliveries and deliveries within the spirit and
letter of said contract. That any delays in the completion of the
building referred to in said paragraph, if there were any, were
delays for which this defendant was in no wise responsible, or for
which it may he held liable by said Karriek or any other person,
firm or corporation.
7. Answering paragraph seven of said cross-bill this defendant
says that it admits said Karrick paid a few of the freight bills for
some of the material supplied by it to him, but it avers that he has
been fully reimbursed either in cash or bv receiving credit therefor
in his account with this defendant.
8. This defendant has no knowledge of the allegations contained
22
FIDELITY STORAGE CORPORATION ET AL. VS.
in paragraph eight of said cross-hill and yan, therefore, neither ad¬
mit. nor deny the same. hut. if material, demands strict proof thereof.
9. Answering paragraph nine of said cross-bill this defendant
absolutely denies the allegations thereof, and demands, if material,
strict proof of said allegations, and of any and all facts that are
necessary to establish the liability for the alleged loss or damage
set up in said paragraph nine.
10. This defendant denies that there is due from it to said Kar-
riek the sum of Five Thousand, Two Hundred and Fifty-three and
55/100 (5.253.55) Dollars, with interest from January 25.
39 1900, .as set forth in said paragraph, or any amount whatso¬
ever, and, if material, it demands strict proof of the allega¬
tions contained in said paragraph.
Further answering said cross-bill this defendant alleges that the
cause or causes of action set up therein are purely legal causes of
action, being unliquidated demands for damages, and that as such,
said Karrick has no standing in a Court of Equity in such a suit
jis this one is, to maintain such a claim. This defendant claims the
same advantage of these allegations as if it had demurred to said
cross-bill.
And having fully answered said cross-bill this defendant prays
to be hence dismissed with its reasonable costs in this behalf in¬
curred.
TRUSSED CONCRETE STEEL COMPANY.
Ry RALSTON & STDDONS, Its SoPrs.
Replication to Ansirers to Cross-Rill.
Filed August 2, 1900.
In the Supreme Court of the District of Columbia.
No. 29091. Equity Docket.
•
Trussed Concrete Steel Company
vs.
James L. Karrick et al.
The complainant in the cross-bill James L. Karrick hereby joins
issue with the defendants thereto. Trussed Concrete Steel Company
and Fidelity Storage Corporation.
WALTER C. CLEPHANE,
Solicitor for Complainant. James L. Karrick.
TRUSSED CONCRETE STEEL COMPANY.
23
40
Amendments to Cross-bill.
Filed February 17, 1908.
In (ho Supreme Court of the District of Columbia, Holding an
Equity Court.
Original Rill. Xo. 20091, Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation ; James L. Karrick,
Albert A. Wilson and John R. Earner, Trustees; Washington
Loan and Trust Company, a Corporation.
Cross-bill. Xo. 20091, Equity Docket 58.
James L. Karrick
vs.
Trussed Concrete Steel Company, a Corporation; Fidelity
Storage Corporation, a Corporation; Albert A. Wilson and John
R. Earner, Trustees; Washington Loan and Trust Company, a
Corporation.
Now comes Janies E. Karrick, complainant in the cross-bill here¬
tofore filed, and with leave of the court first had and obtained,
amends bis cross bill as follows:
By adding to the end of paragraph 6 thereof the following:
“And your complainant says that because of the necessity
41 of delaying the building operations until freezing weather
had set in as hereinabove stated, and although this complain¬
ant used every means in his power to prevent the mortar in said
building from freezing, and to prevent the frost from affecting the
said concrete work, and although he believed that he had been
successful in so doing, nevertheless the fact is that with the exercise
of the greatest precautions much of the mortar which was used in the
construction of said building froze, portions of the stucco also froze,
and portions of the concrete work were damaged by freezing; and it
will therefore become necessary for this complainant to replace the
stucco damaged as aforesaid, to rake out the mortar joints and refill
the same on the east and west walls of said building, and to cut out
and resurface a portion of the eighth & ninth floors thereof, for all
of which defective work the said Fidelity Storage Company holds
this complainant responsible.”
This complainant also amends bv adding the following items at
the end of the ninth paragraph of the said cross-bill, to wit:
24
FIDELITY STORAGE CORPORATION ET AL. VS.
“Deterioration in signs on the ea.t and west walls of
building due to freezing of mortar joints. $75.00
Stucco damaged by freezing. 75.00
Estimated cost of raking out joints and filling up same
on east and west walls. *20 feet by 200 feet, 8,000
square feet, also strip one foot wide and 200 feet long
on east and west walls on two floors, 800 feet; total
of 8,800 square feet, at 10 cents per foot. $880.00
Cutting out and resurfacing a part of eighth floor,
damaged by freezing, 00 by 100 feet, 6,000 feet; also
ninth floor. 60 by 150 feet. 0.000 feet; at 00 cents
per yard for new work and 10 cents per yard for
picking up old surface; that is 70 cents per yard for
1,066 yards, amounting to. $1,166.20
Making a total of. $2,196.20
This complainant also amends by striking out in the tenth para¬
graph of said bill the words, ‘‘Five Thousand two hundred and
fiftv-three and fiftv-five one-lmndredths ($5,258.55) Dollars/* and
substituting therefor the words “Seven Thousand Four lmn-
42 dred and fortv-nine and seventv-five one hundredths
($7,449.75) Dollars.”
JAMES L. KARRICK.
WALTER C. CLEPHANE,
Solicitor for Complainant in Cross-bill.
District of Columbia, ss:
James L. Karrick being first duly sworn deposes and says that ho
has read the foregoing amendments to his cross-bill by him sub¬
scribed and knows the contents thereof; that the matters and things
stated in said cross-bill and amendments as of his own personal
knowledge are true, and those therein stated upon information and
belief he believes to be true.
JAMES L. KARRICK.
Subscribed and sworn to before me this 15th dav of Februarv
1908.
[seal.] JNO. C. ATHEY,
Notary Public, D. C.
TRUSSED CONCRETE STEEL COMPANY.
25
48 Answer of Fidelity Storey a Corporation to Amended Cross -
Bill.
Filed February 17, 1908.
In the Supreme Court of the District of Columbia, Holding an
Equity Court.
Original Hill. Xo. 20091, Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert A. Wilson and John B. Earner, Trustees; Washington Loan
and Trust Company, a Corporation.
Cross-bill. No. 20091, Equity Docket 58.
James L. Karrick
vs.
Trussed Concrete Steel Company, a Corporation; Fidelity
Storage Corporation, a Corporation; Albert A. Wilson and John
B. Earner, Trustees; Washington Loan and Trust Company, a
Corporation.
For answer to said amended cross-bill this defendant savs that it
admits to bo true the allegations contained therein.
FIDELITY STORAGE CORPORATION,
By ALAN O. CLEPHANE, Solicitor .
44 Ansver of Trussed Concrete Steel Co. to Amended Cross-Bill.
Filed March 21, 1908.
In the Supreme Court of the District of Columbia, Holding an
Equity Court.
Original Bill. No. 20091, Equity Docket 58.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation; James L. Karrick,
Albert Wilson and John B. Earner, Trustees; Washington Loan
and Trust Company, a Corporation.
Cross-bill. No. 26091, Equity Docket 58.
James L. Karrick
vs.
Trussed Concrete Steel Company, a Corporation; Fidelity
Storage Corporation, a Corporation; Albert A. Wilson and John
B. Earner, Trustees; Washington Loan and Trust Company, a
Corporation.
The answer of the Trussed Concrete Steel Company to the amended
cross-bill of James E. Karrick in the above entitled suit respectfully
shows to the Court as follows:
26
FIDELITY STORAGE CORPORATION ET AL. VS.
1. Answering the amendment to the sixth paragraph of said cross¬
bill, which is the first amendment made by said James L. Karrick,
this defendant denies that any delay in the building opera-
do lions, set out in the original and cross-bills filed herein and
referred to in said amendment, was in any wise due to this
defendant in the performance of its contract set out in its original
hill of complaint, and that if thero was any delay in said building
operations, such delay was caused by said James L. Karrick, or ho
is in one way or another responsible and liable therefor. It denies
that any freezing of any of the material in said building took place
by reason of any neglect, default or omission of this defendant *n
the performance of its said contract; or that it is in any wise what¬
soever liable or responsible therefor.
Whether such freezing took place or not, this defendant has no
information and can. therefore, neither admit nor deny the same,
but if material, demands strict proof thereof. It also has no in
formation as to whether or not it has become necessary to make any
repairs to the building in question, or to replace any of the material
in said building, or perform any woik thereon and can, therefore,
neither admit nor denv the same, but if material, lema.ids strict
proof of the allegations of said amended paragraph hi this behalf.
It has no information as to whether the Fidelity Storage Company,
the defendant in the original and cross-bills of complaint, holds said
Karrick responsible for any defective work in said building, but
even if it does, this defendant is
advised that it is neither liable nor
responsible for the fact, and it asks the same advantage of this
answer as if it had demurred to said allegation. Hut if it should be
held that this allegation is material, this defendant demands strict
proof thereof.
46 Further answering said amended paragraph six of the
cross-bill, this defendant says that it is informed and be¬
lieves and therefore avers, that the said Karrick, in the construction
of said building, employed and used much second-hand and cheap
material and cheap and incompetent labor, which resulted in re¬
peated delays in the construction of the building operation in ques¬
tion. and which also resulted in such defective work and material
as may have been done upon or put in said building, and the de¬
fective conditions, work and material in said building, set out in
said paragraph 6 of the cross-bill as amended, if any such existed
or do exist, were and are due exclusively to causes for which this
defendant is in no degree liable or responsible.
2. Answering paragraph 9 of said cross-bill as amended, this de¬
fendant absolutely denies the allegations thereof and demands strict
proof of said allegations and of each, any and all facts necessary
to establish the alleged liability of this defendant for the alleged
loss or damage set up in said paragraph 9 as amended.
9. Answering paragraph 10 of said cross-bill as amended, this
defendant denies that there is due from it to said Karrick. the sum
of Seven Thousand Four Hundred and Forty-nine and 75/100
(7449.75) Dollars, with interest from January 25th, 1906, as set
forth in said paragraph, or that there is due from it to said Karrick
TRUSSED CONCRETE STEEL COMPANY.
27
any sum whatsoever, ami if material, it demands strict proof of the
allegations of said paragraph as amended.
And having fully answered said amended cross-bill, this defendant
prays to be hence dismissed with its reasonable costs in this
47 behalf incurred.
TRUSSED CONCRETE STEEL COMPANY,
Bv HERMAN KROLIK, Treasurer.
RALSTON £ SID DONS,
Sol’rs for Steel Co.
County of Wayne.
City of Detroit. State of Michigan, ss:
Herman Krolik, being first duly sworn, on oath deposes and says
he is the treasurer of the Trussed Concrete Steel Company, the de¬
fendant named in the foregoing answer, and as such is authorized
to sign the same: that he has read the same and knows the contents
thereof: that the matters and things therein stated on his own per¬
sonal knowledge are true, and those stated on information and belief
ho believes to be true.
HERMAN KROLIK.
Subscribed and sworn to before me John A. Milotte, a Notary
Public, in and for the/Countv, City and State aforesaid, this 4th day
of March, A. D. 1908.
[seal. | JOHN A. MILOTTE,
Notary Public, Wayne County, Mich.
Mv commission expires July 24, 1910.
48 Replication to Ansicers to Amendments to Cross-bill.
Filed March 23, 1908.
In the Supreme Court of the District of Columbia.
Original Bill. No. 20091, Equity Docket 58.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
Cross-bill. No. 26091, Equity Docket 58.
James L. Karrick
V9.
Trussed Concrete Steel Company et al.
The complainant in the cross-bill, James L. Karrick, hereby joins
issue with the defendants thereto.
WALTER C. CLEPHANE,
Solicitor for Complainant Karrick.
28
FIDELITY STORAGE CORPORATION ET AL. VS.
49
Amended Bill.
Filed August 4, 1908.
In the Supreme Court of the District of Columbia, Holding a Special
Term for Equity Business.
No. *20091, Equity Docket.
Trussed Concrete Steel Company, a Corporation,
vs.
Fidelity Storage Corporation, a Corporation ; James L. Iyarrick,
Albert A. Wilson and John B. Earner, Trs.; Washington Loan
and Trust Company, a Corporation.
Now comes the complainant and, by leave of court first had and
obtained, amends its original bill of complaint in this case as fol¬
lows :
Amend the fourth paragraph bv adding after the la*t word therein,
the same being the word “building.” the words “and the last of said
material called for bv said contract was received bv said Karrick
• •'
on or about the 12th day of December, A. D. 1905. thus completing
the requirements of the aforesaid contract.’’
TRUSSED CONCRETE STEEL COMPANY,
By RALSTON A SIDDOXS, Its Solicitors.
50 Testimony on Behalf of Complainant.
Filed April 22, 1909.
In the Supreme Court of the District of Columbia.
Equity. No. 26091.
The Trussed Concrete Steel Co., Complainant,
vs.
Fidelity Storage Corporation, Defendant.
District of Columbia,
County of Washington, ss:
Be it remembered that at an examination of witness begun and
held on the 29" day of April, A. D. 1908, when the within deposi¬
tion was taken; I, Alexander II. Galt, an examiner in Chancery,
did cause to be personally present at the offiee of F. L. Siddons,
Esquire, Bond Building in the city of Washington, in said District.
Hugo Magrini to testify on the part and behalf of the complainant,
in a certain cause now pending in the Supreme Court of the District
of Columbia, wherein The Trussed Concrete Steel Co. is complainant
and The Fidelity Storage Corporation is defendant.
TRUSSED CONCRETE STEEL COMPANY.
29
Which said examination was had after due notice and at which
on the day aforesaid, there were present F. L. Siddons, Esquire, for
the complainant, and Messrs. Clephane and Clephane, for the de¬
fendant.
ALEXANDER H. GALT, Examiner.
* * * * * * *
51 Washington, D. C., April 29th, 1908.
Met pursuant to notice at the office of Messrs. Ralston and Sid¬
dons, Bond Building, Washington, D. C., on the above date for the
purpose of taking testimony on behalf of the complainant in the
above entitled cause.
Present: Frederick L. Siddons, Esq., of counsel for Complainant;
Walter C. Clephane, Esq., Solicitor for the Defendant Karrick in
the original bill, and also for the Complainant Karrick in the Cross-
Bill, and Mr. Alan Clephane for The Fidelity Storage Company,
Defendant, in both bills.
It was mutually stipulated and agreed by and between counsel
for the respective parties hereto that the testimony hereafter to be
taken shall be considered as taken both under the original and
cross-bills of complaint, and that the witness whose testimony is to
be taken today bv the complainant in the original bill of complaint,
and one of the defendants in the cross-bill, may be taken at this time
though taken out of order.
ID ;go Maorini. a witness produced for and on behalf of the com¬
plainant. having been first duly sworn, testified as follows:
Bv Mr. Siddons:
Q. Mr. Magrini, I wish you would state your residence and oc¬
cupation. A. My residence is at Norfolk, Va., at present,
52 No. 75 Charles Street; I am employed at the Naval Y. M. C.
A. building, doing the concrete work.
Q. What is your business or trade? A. I am an all round con¬
struction man, and I make a special business of reinforced and plain
concrete construction work.
Q. How long have you been in the business? A. All of my life,
since I was able to work.
Q. Are you familiar with the various systems of reinforced steel
construction? A. A good many of them, yes sir.
Q. W ere you ever employed by Mr. James L. Karrick of the Fi¬
delity Storage Corporation, and if so when and where? A. I was em¬
ployed by Mr. James L. Karrick in 1905 in answer to an ad. in the
paper for such position.
Q. And when employed by Mr. Karrick what were you employed
to do? A. To carry on the concrete work on what was called the
warehouse; it is called the Fidelity Storage house nowadays. That
was before the job was complete.
Bv Mr. Clephane:
•7
Q. I would like to ask you right there whether the contract of
employment was in writing? A. No sir.
30
FIDELITY STORAGE CORPORATION ET AL. VS.
By Mr. Clephane:
Q. Was there any correspondence between you leading up to that
employment, between Mr. Karrick and the Fidelity Storage Cor¬
poration ?
Mr. Siddons: lie said he was employed by Mr. Karrick.
53
By Mr. Clephane
Q. Well, was there any correspondence between Mr. Karrick and
the Fidelity Storage Corporation and yourself? A. No sir.
Q. Before the contract was entered into? A. No sir.
Bv Mr. Siddons:
•/
Q. Now will you state where the building was that you were em¬
ployed to do this work upon? A. It is on U Street, I think it is
No. 1420 if my memory serves me right. It is between 14th and
15th streets, on the south side ot the street, 1 think.
q. In this city? A. Yes sir.
Q. What were you employed by Mr. Karrick to do? A. To put
in reinforced concrete Hoors in the building.
Q. Can you tell us about when your work actually commenced
there, that is, approximately? A. I think it. was around between
May the 1 Oth and May the 15th, something like that.
Q. What year? A. 1905.
Q. IIow long did you remain so employed, Mr. Magrini? A. To
the 25th day of December, 1905, the previous morning about 10
o’clock or so—Christmas morning?
Q. During the period you were so employed, where did
54 y 0 u live? A. At the corner of W and Fourteenth Street-;
I think it was 2208, or 2204, 1 do not know which. The
latter part of the job I was living at No. 1418, right next door to
the storage building.
Q, When did you move to the latter place, next door to the build¬
ing? A. About three months previous to leaving the job.
Q. Xow 1 wish you would describe just what your duties were
on that building? A. My duties were to look after the whole thing
for the safety of the building.
Q. Do you mean that you were in control of any of the people
employed there other than those employed on the steel construction
work? A. No sir, only the concrete men, and the work of doing
the girders of brick, to leave a certain opening for corridors and
concrete floors.
Q. Do you know what system of reinforced steel construction
work was put on that building? A. The Kalin system.
Q. Do you know who supplied that material? A. The Trussed
Concrete Steel Company of Detroit.
Q. How soon after you commenced your employment at this
building, if you can tell, did the work of actually putting in the
reinforced steel construction commence? A. The reinforced steel
construction commenced from the foundation.
Q. Mr. Magrini. outside of the materials supplied by the
55 Trussed Concrete Steel Company for this building, what was
the character, if you know of other material that went into
TRUSSED CONCRETE STEEL COMPANY. 31
the building, such as bricks, lumber, etc.; was it new or was it
second hand? A. It was second hand.
Q. What material was second hand? A. Part of the bricks were
second hand, with the exception—I cannot recollect; the front or
outside walls—the veneer of the outside walls.
Q. Is that what you call it, veneer? A. Well, the outside courses.
Q. The front and side walls were new? A. The outside part of it.
Q. And the inside brick was what? A. Second hand.
Q. Was the brick sound brick—I mean whole bricks, or how did
they run? A. Well, in some of the walls it would run about 50%
bats.
Q. What do you mean by that? A. Half bricks, third bricks,
broken-off bricks.
Q. How about the lumber that went into the building, was that
new or second hand, or any part of it? A. What part of it?
Q. Any part of it, just tell us if any part was. A. For form
work ?
Q. For any of the work? A. It was all second hand except I
guess about as near as I can recollect a thousand feet to repair
beam work as we went up with the building—platform work,
56 because we had exhausted all the second hand stuff there.
Q. Do you know where any of this second hand material
came from? A. I guess from all parts of the city.
Q. Do you know about that? A. I do not know.
Q. Did anyone ever tell you where any of it was obtained? A. It
was from the buildings that were demolished by the new Union
Depot—where the new Union Depot is located, some of it, so I was
told.
Q. Mho told you? A. The man who was hauling bricks
Baldwin.
Mr. Clepiiaxk: The testimony is objected to as hearsay.
Q. Did you ever have any conversations with Mr. James L.
Karrick regarding the character and material that was being put
into the building? A. Referring to brick?
Q. Brick or lumber, yes sir. A. I have.
Q. What was the nature of those conversations, what was it about?
A. At times the amount of lumber was not sufficient to carry the
work on to any speedway.
Q. Do you know what the character of the material was that
went into the doors of the building, the inside doors? A. It was
second hand.
57 Q. How about the window bars? A. It was second hand.
Q. Were those window bars of steel or iron or wood?
A. It was iron railing, old iron railing fence, whatever you might
call them. ‘ 6
Q. Do you remember whether there is a full door in that building?
A. Yes sir.
Q. What was the material, new or second hand? A. Second
hand.
Q. Do you know where that came from? A. I was told that it
32
FIDELITY STORAGE CORPORATION ET AL. VS.
came from the National Hotel, but 1 do not know. It was second
hand, that is all I know.
Mr. Clepiiane: Objected to as hearsay.
Mr. Siddoxs: I am perfectly willing that that answer may he
stricken out.
Q. Can you tell us what arrangements were made for hauling
material from the railroad, with whom it was made; who did the
hauling? A. I do not know anything about the hauling, but most
of the hauling was done by Mr. Baldwin the man employed there
in digging the foundation.
0 . How about the steel work, who brought that to the building?
A. Sometimes Mr. Baldwin and at other times the Anderson Trans¬
fer Company, and material by Littlefield A: Alvord, such as cement,
etc.
Q. Who laid the brick there, white or colored brick-
58 layers? A. Well, we had three different gangs putting
bricks there.
Q. What was the first gang? A. Union bricklayers.
Q. White or colored? A. White.
Q. How long were they on the building? A. Until about half
the walls to the first floor were up.
Q. Then after that was there any delay between the leaving of
this first gang of bricklayers and the employment of the second? A.
A few da vs.
Q. How long did the second gang remain there, approximately—
to what stage of construction, if you can tell us? A. They remained
there between the fourth and fifth floors. I think.
Q.. flow long a time elapsed between the discharge of this second
gang and the employment of the third gang of bricklayers? A.
Quito a few flays.
Q. Mr. Magrini, in putting in all the reinforced steel construction
work was it necessary to prepare any concrete? A. Yes sir.
Q. Where was that prepared or mixed? A. Right along side the
building.
59 Q. IIow was it mixed? A. The foundation was mixed
by hand: we did not have any mixer, and from part of the
floor all the way was a concrete mixer.
Q. Now bearing in mind the character of the steel work that was
put into the building, and the size of the building what do you say
about the size of that mixer for the purpose for which it was to be
used? A. The size of the mixer was about twice too small. It was
a six cubic foot mixer and it would have been inadequate if we had
had any way to do speed work; if we had sufficient lumber to put in
the centering or false work or forms, as you may want to call them.
Q. Did you ever speak to Mr. Karrick about the size of the mixer?
A. I told him many times that I could put that floor in in three or
four days if I had any way to put it in. He said “why don’t you
do it.” I said it was impossible. That is what I said always to Mr.
Karrick under the circumstances.
Q. T wish you would briefly describe how you have to prepare
and how you did prepare the building for concrete work; describe
TRUSSED CONCRETE STEEL COMPANY.
32
what construction has to bo made temporarily or otherwise in order
to put in the concrete work? A. Well, we have to build the false
work.
Q. W hat do you mean bv that? A. The false work is forms, pre¬
paring the building in wood, casting the cement in, and then you
take the lumber work out as you cast the plaster of Paris figure, and
iron moulding, etc. Evervbolv knows how concrete work is
done.
00 (>. I do not know that everybody does. A. At least, I
mean to say, that everybody has an idea of construction
work.
Q. Now when did the construction of this false work or forms, as
you call it. commence in this building—at what stage, I mean, of
construction; when did you first have to begin to make these forms
or false work? A. From the ceiling to the ground floor, that means
the first floor.
Q. Did that work of construction of false work and forms con¬
tinue from that first floor up to the top? A. Up to the roof, yes
sir, stairwavs, etc.
Q. Were you furnished with such lumber and material as was
necessary foi the construction of this false work or forms promptly?
A. They had a carpenter foreman there who was supposed to be
one. but I made a model for the forms and Mr. Karrick took per¬
sonal charge of that part of the work.
Q. Now in reference to the delivery of the steel work by the
Trussed Concrete Steel Company, was this false work, and were
those forms always ready for the steel work as delivered? A. No
sir, not always, for we had only one set of forms in the building, a
little over for one floor, and the specification on the Trussed Con¬
crete Steel plan. They would have left no form if they had taken
charge of that job and let the forms stay in place for three weeks.
Mr. Clepiiane: Are you speaking of the specification of the
Trussed Concrete Steel Company?
01 A. No sir: printed on the back of the Trussed Concrete
Steel Company plan.
Mr. Cleimiane: T object to that because it is in writing if it exists
at all. and the writing is the better evidence. I shall move to strike
out this testimony at the hearing.
Q. Were you employed at this building by Mr. Karrick during
the period in which the materials supplied by the Trussed Concrete
Steel Com pan v were delivered there? A. Yes sir.
Q. All of it? A. All of it.
Q. Did you see it as it was delivered at the building? A. Yes sir,
as it came to the building; many times T saw the material on the
railroad tracks before it was delivered to the building.
Q. I wish you would describe the condition in which that ma¬
terial was received when you first saw it, whether at the tracks or
at the building—all of it; describe its condition as to whether it
was good, had or indifferent? A. It was in good condition with
the exception of a few bent bars sometimes when they arrived at the
building.
3—2057a
34
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Were there many such bent bars? A. Xo sir, a few of them.
Q. Now with respect to such bent bars, what had to be done, if
anything, to them in order that they might be used in the construc¬
tion work? A. Well, you could put them around your knee
62 and straighten them out; it did not take any time whatever.
Q. Did vou have to send anv of the material of the Trussed
Concrete Steed Company, or do you know of any of it having been
sent away for repair? A. Some of the anchor bars were bent by a
man employed by Mr. Karrick—the same man who was running
the hoisting engine was running a little blacksmith shop for Mr.
Karrick, outside of the Trussed Concrete Steel Company, for other
work, say hinges or coupling pipes and other purposes, and oc-
casionallv he had to bend some of those anchor bars when thev were
most too thick to bend bv hand.
__ «
Q. Were those anchor bars so bent in that condition when they
reached the building? A. Xo sir.
Q. Were they bent afterwards? A. In my experience we had to
bend all bars in the building.
Q. You have to bend them? A. Yes sir.
Q. Why? A. I saw no reinforced concrete system there; they
sent the bars.already bent; other ones were in shape, as in the new
system, the Maxwell system. They are bolted and riveted together.
Q. So that after the material for this building was received, some
of it you say Had to be bent before it could be put into the building?
A. Yes sir.
Q. 1 forgot to ask you at the beginning of your testimony
63 whether you are familiar with any other systems of rein¬
forced steel construction work beside the Kahn svstem? A.
Yes sir.
Q. I wish you would Mate what systems they are? A. The Ran¬
som, the Clinton Wire Cloth, the Ferrall and the Unity. The origin
of all is the Hennebeque system.
Q. Have you worked in putting in any of these systems that you
have just mentioned? A. Yes sir.
Q. IIow long have you known generally the method or system of
reinforced steel construction work—approximately how many years?
A. In the beginning of my construction work I used t he use pipes
to connect joints. Mv own reinforcing, before many systems of
reinforcing were in existence, was that. In fact most of these sys¬
tems. the new systems, were in existence two or three or four or five
vears. and the system known to the world over is the Ilennembeque
svstem, a French system, which is now used, and is an expensive
one too. It takes about *$25.00 a ton to work the iron out, and *$25.00
to put in the girders.
Q. Was any of the material supplied by the Trussed Concrete
Company to this building taken from the building for storage pur-
j>oses after it had arrived there, during the period of construction?
A. When half of the material arrived it was laid around the build¬
ing in those vacant lots there and in the alley alongside the building.
I think the first two floors or the second floor for the founda-
64 tion was right on the east side of the building; part of it was
in the lot and part of it alongside the building. It remained
TRUSSED CONCRETE STEEL COMPANY. 35
.there for a long time until the weeds grew up about three feet over
the iron, and I had a hard job to find what 1 wanted to use.
Q. Why did it remain there for that length of time? A. Because
we were not ready for the use of it.
•/
Q. Why were you not ready for the use of it? A. Well, the brick
work was slow and the hoisting engine did not arrive until long
after the first story was ready.
Q. Was the Trussed Concrete Steel Company to supply the hoist¬
ing engine, if you know? A. Not that I know of; I guess Mr. Kar-
rick bought it.
Mr. Clkpiiane: Do you know about that at all, personally?
The Witness: No sir, I do not.
Mr. Clepiiane: I move to strike out the answer.
The Witness: 1 do not know where he bought it.
By Mr. Siddons:
4 *
Q. 1 did not ask you where he bought it. What was the hoist¬
ing engine used for? A. It. was used for hoisting concrete brick
and all material on the building.
Q. Was there any delay at all in the use of the steel material that
was received at the building on any ground or for any rea-
05 son—was there any delay in the use of that material received
from the Trussed Concrete Steel Co., in actually putting it
in the building? A. Yes sir.
Q. What was that due to? A. It was all the way through the
building, due to the inadequate number of carpenters; there were
no skilled carpenters, only common handy men, no mechanics
whatever, with the exception of the foreman, if he was a mechanic.
(J. Beside the changes in the gang of bricklayers, that you have
referred to. were there any other changes of mechanics and laborers
made while you were there at the building? A. We were getting in
new laborers every day; some would quit, but with the exception of
the bricklayers there were no other changes that 1 know of made in
the building, with the exception that the foreman of the carpenters
was discharged by Mr. Karrick, I think about half way of the job.
Q. Mr. Magrini, was progress made with the pier work; did that
go on promptly, or were there any delays in regard to that, and please
tell us just what that pier work was? A. As to the pier work, the
only piers in the building were up in the front, and when we reached
the second floor there was a big lintel that goes across laterally of
the building, say east and west, or west and east—it is about the
same thing—and that pier was laid out wrong: the brick masons
and Mr. Karrick laid that brick pier but they found out it was six
inches out of the way of the building line so they had to cut
66 that down and that caused a little delay in getting ready
and putting that big lintel in.
Q. Can you tell us how much delay, approximately, that caused
in the number of days, if you remember? A. I think it took a man
about three or four days in car ting that down; I cannot tell exactly
how many days.
Q. Did that at all delay the progress of putting in the steel construe-
FIDELITY STORAGE CORPORATION ET AL. VS.
tion work? A. It delayed in putting the concrete in and the steel
goes with the concrete.
Q. Coming hack, Mr. Magrini, to the construction or preparation
of this false work, or forms for the reinforced steel construction work,
did you have any conversation at any time with Mr. Karrick regard¬
ing the progress, or want of progress, in the work, that is the false
work and the forms? A. I told Mr. Karrick many times—he was
anxious to do speedy work—that it was not possible to carry the work
on in a speedy way with the outfit we had there, machinery, etc.
Q. Did the delay result in delaying the putting in of the steel
construction work? A. 1 do not understand that question.
Q. Did the delay in the making of this false work and these*
forms result in anv delav in the use of the steel material that was
supplied by the company? A. The delay most of the time was due
to a lack of lumber or sufficient material to earrv the false work on.
and other delays were caused by no prompt delivery of the gravel
or sand, and at times cement.
Q. How did the delay in the delivery of gravel, sand and
67 cement delay the use of the steel material? A. Because the
sand, gravel and cement had to go in with the steel. You
cannot put in any steel without concrete.
Q. IIow frequent were the delays, if you can tell us, in the de¬
livery of the sand, cement and gravel? A. Up to about the sixtli
floor.
Q. Then after that the deliveries were more prompt? A. We
had not sufficient material accumulated around the job to cam* the
rest of the work out.
Q. What kind of material? A. Gravel.
Q. I wish you would tell us what the character of the material
was that was mixed for the purpose of concrete work? A. You mean
the proportion?
Q. No. the kind of material—was it good gravel, good sand and
good cement or otherwise? A. We had good gravel from the sixth
floor up. hut previous to that, say on the fourth floor. I used broken
bricks in the girders which Mr. Karrick wanted me to put in there
because he said he was paying the money.
Q. What would he the effect upon the mixture in the use of brick
instead of gravel? A. It would make a had and dangerous piece of
construction.
Q. Why dangerous? A. Tn the first, place the broken bricks were
broken about the size of from two inches up. and they would
68 be too large to compound with the steel reinforcing. Besides
that, the whole mortar which hangs on it. or the whole bricks.
would interfere with the settling of the cement; the slacking of the
old lime would interfere with the settling of the cement.
Q. Did you observe such conditions as that? A. I objected but
Mr. Karrick was the one who was paying me the money and T had
to carry out his orders.
Q. Mr. Magrini. were you familiar with the roof finish and the
stucco work? A. Yes sir.
Q. I wish you would tell us what its character was—was it good,
TRUSSED CONCRETE STEEL COMPANY.
37
bad or indifferent? A. As to the style of the stucco work, Mr.
Karrick gave directions to use some of that brick mortar and I told
him it was not possible to have that stucco work stick onto the walls
in and out. T gave Mr. Karrick a formula to carry the work on.
Q. What was the result of that? A. Tt was done by a non-expert
and unskilled labor— twenty cents an hour men and seventeen and
a half cents. That was done by laborers.
Q. What were the concrete blocks used for in that building, if
at all? A. For partition.
Q. Did you observe while you were there, the mixing of any of
those concrete blocks, bow they were made up? A. I made most
of them while T was on the job, or at least I directed the making of
them.
f>9 Q. Now I wish you would tell us how those concrete blocks
were made, and what material was used in the making of
then), and at whose direction? A. Tt was mostly ashes.
Q. Obtained from where, if you know? A. From all over; as
a general rule Mr. Karrick used that place as a dumping place;
everybody could dump their ashes or cinders there and he had the
use of them.
Q. Did you mix anything else besides ashes? A. Ashes and cin¬
ders and cement.
Q. Was any mortar used? A. There was some old mortar. There
was a big pile of old mortar that came from somewhere, from an
old torn-down building, which was mixed with the blocks, with the
cinders.
Q. I wish you would tell us whether, if at all, and if so when, dur¬
ing your employment on the building, there was any delay in the
receipt of steel material coming from the Trussed Concrete Steel
Company, which delayed the progress of the building? A. Yes sir,
on the sixth floor.
Q. And can von recall how much delay that was? A. I think
by the arrival of the material it was about in the neighborhood of
two weeks, and a delay of over six or seven days was caused by not
having anybody to haul the material from the railroad tracks to the
depot.
Q. Did you see that sixth floor material at the railroad cars? A.
Yes. T went there; the cars were placed on the side tracks up on 14th
street on the Pennsylvania line.
70 Q. How long was it after you saw that sixth floor mate¬
rial on the ear before it reached the building? A. Tf my
memory serves me right, T think the Anderson Transfer Co. had a
contract with Mr. Karrick to haul the steel to the job for $1.00 a
ton but. they found out they were pretty busy and they made a
mistake, and thev were under the impression that they were losing
money, and we hauled the steel. Mr. Karrick and I drove to the
Anderson Transfer Co. one day and Mr. Karrick said he would sue
them for damages, and afterwards the steel was not forthcoming and
we were ready for that floor: that was the only floor; we had the
false work all ready all the way through. T went over the tracks
and hired otic of those oyster express wagons at the fish market to
haul some of the bars to start the work with; in fact they hauled all
38
FIDELITY STORAGE CORPORATION ET AL. VS.
that afternoon and I think part of the next morning, and then the
Anderson Transfer Co. hauled the rest. I think Mr. Karrick at
that time had a little trouble with Mr. Baldwin, the man who did
all of Mr. Karriek’s hauling, and he could not get anybody else to
haul the steel to the job. which caused a delay of six or seven or
eight days maybe on the tracks after it arrived there.
Q. After the material arrived? A. After it arrived on the tracks,
ves sir.
*>
Q. Now beside the delay in the receipt of this sixth floor shipment,
was there any delay in the receipt of any of tin* other materials sup¬
plied by the Trussed Concrete Steel Co.?
Mr. Clepiiane: The question is objected to because the
71 matter of delay b governed entirely by the contract with the
Trussed Concrete Steel Co., and unless this witness is familiar
with the terms of that contract he would not be able to answer the
question. If he is familiar with the terms of the contract the an¬
swer would be inadmissible because the contract speaks for itself.
A. No sir.
Q. As the other steel material was received, was the building ready
for its immediate use? A. No sir.
Q. Why was it not ready? A. The kind of carpenters and the
number of carpenters were not sufficient to carry the work on. Be¬
sides the forms, they were to stay on the concrete work for a lapse
of three weeks.
Q. Why was that? A. To giv<* sufficient time for the cement to
settle before removing the forms, so as to leave the building in a
safe wav. Most of the time 1 took the forms out in six or seven (lavs,
so as to drag along, and put the false work in little by little so that
we could go ahead gradually with the work.
Q. You used then those forms over and over again? A. From
the bottom up to the roof, the same forms.
Q. Is that the cu-tomary way of putting in a system like this?
A. No sir: there is not another piece of work in the country up to
this time that has been built in the same wav.
• r
72 Q. What was the condition of the weather, if you remem¬
ber it. in the middle of June. July, and August after the
construction of tin- building commenced, I mean whether it was
good and clear, or otherwise. A. We had very rainy weather, that is
we had many showers, and we had many washouts, I think, on almost
even* floor.
Q. You had a washout? A. Yes sir.
Q. What do you mean by that? A. Well, the showers that would
wash our cement work out. so that we had to go to work and patch it.
Q. Did those rains and washouts that you refer to interfere or
delay the reinforced concrete work at all? A. Tt delayed all the
work. After a heavv shower a bricklaver caifnot lav anv brick;
they are too wet.
Q. Now beginning at the 1st of October and going to Christmas
day. when I understood you to say you left Mr. Karrick J s employ,
how much freezing weather did you have, if you remember? A.
Very little; in fact it was very mild, and the only freezing weather
TRUSSED CONCRETE STEEL COMPANY. 39
we had was around Thanksgiving Day. I remember the time. I
was informed that Mr. Karrick was in New York.
Q. Do not say what you were told bv any one else. A. That w r as
the time; I could not consult with Mr. Karrick in the matter of put¬
ting down cement, hut I went along with the work gradually and
stopped before nightfall so far as to give the cement a chance to
settle. That was only a few days.
73 Q. When you left Mr. Karrick’s employ on Christmas day
1905, had the reinforced concrete steel work been completed?
A. Up to the ninth floor with the exception of panels made, we
will say twenty by forty, right in front of the elevator. I was put¬
ting in beams and panels right in front of the freight elevator at the
time, trying to make time on Christmas day, as I had done all the
wav through the job, working until about noon time on Sundays.
Q. Did you see any freezing of any of the reinforced concrete steel
work while you were there; did you see any concrete work frozen
at all? A. Up on the eighth floor at the time mentioned, that is
around November I think we may have had a couple of days of cold
weather, that is around the first part of December. Rut after that
the weather was beautiful.
Q. I do not think you understood my question. I asked you if
as a result of that cold weather referred to you observed any freez¬
ing of the concrete or the cement which had been put in, or that
was being fait in? A. We had stoves^—no sir, not to do any dam¬
age to the work.
Q, You started to say something about stoves. What was that?
A. Mr. Karrick provided a couple of stoves, but I think w T e only
used them once for a couple of days. We burned some refuse around
the job, wood cleats, etc.
Q. Now as to the unfinished work that you have referred to,
which you left on Christmas day w’as the steel material on
74 hand to finish it? A. Oh yes.
Q. Do you know how long it had been on hand? A. It
was on hand; we had the material for the roof then. We had all
the material—all the material had arrived.
Q. During the construction of that building, did you at any time
notice any cracking of the concrete anywhere? A. Yes sir, in many
parts of the building.
Q. T wish you would state as near as may be in w T hat parts you
observed it. and also state the causes of the cracking? A. On the
ground floor, the first floor, the forms w'ere put up in such a way
that they w'ould give out, sink, on rainy days. That was on w'hat
they called the ground floor. There w'as no reinforcement there
whatever with the exception of the footing.
Q. T wish you would tell us what was the cause of that? A. It
was because the forms w’ere not put up in the. proper w r ay; they were
on props. They were not put up in the proper w’ay.
Q. What was it necessary to do when that was discovered—this
cracking? A. On the first floor, the southeast corner of the build¬
ing. the first five girders or beams, whatever it may be—the props
under the beam sank down while we put the concrete in. I do not
know* whether Mr. Karrick got a jack or not; I do not think he
40
FIDELITY STORAGE CORPORATION ET AL. VS.
got a jack to jack these beams up. Yes, we had to jack those
75 beams up in order to reput them in horizontal position. Then
that same day when we had desisted from doing any more
concrete work until the forms were prepared, the pro}>s, at least the
bracing, or whatever you call them, we had a corking rain and all
the men went home. I was on the building inspecting these five
girders. 1 thought they were in a dangerous condition. I examined
them and found vertical cracks in several places in each one. I
then took a fourteenth street car and went to Mr. Karrick’s office—
ho was then at 1M31 (1 Street, northwest—and told Mr. Karrick the
condition of those five heains i telling him that it was unsafe in my
judgment to leave fhem that way. Mr. Karrick said it was quite
an expense to take them out. 1 said, yes, that it would probably be
twentv-five or thirtv dollars for the loss of material. 1 told Mr.
« •
Karrick that 1 would go hack and see if T could do anything for
them. Tie advised me that he would not put any heavy weight on
that part of the building: that the under part of this was going to
be used as a packing room, and in fact it is a packing room now, I
think, though 1 do not know; at least the last time when T was at
the storage rooms that was the case. So thev have remained in the
same position ever since to my knowledge.
Q. Was there any concrete cracking besides that? A. Right in
front, over the freight elevator, between the east and the west, the
panel that spans from that large opening gave way because of the in¬
sufficient and improper way in which they put in those braces and
props. In many other parts of the building there are cracks
70 made by the contraction of concrete, probably from the set¬
tling of the foundations.
(}. During the period that you were employed upon the building,
Mr. Magrini. was there any watchman there? A. Yes sir.
Q. Who was he. and how long dpi he remain, if you know, on
dutv? A. Mr. Karrick had an old man there, if mv memorv senes
me right— his name was Ashwood—an old colored man. Tie used
to work in the day time and watch the place there after supper. We
used to go home at 5 or fi o'clock; that was the time he quit the
job. and he came hack and remained until 0 or 10 o’clock in the
evening, keeping boys away from the job, although there was noth¬
ing there to be stolen.
Q. How much remained to be done in the way of putting in the
reinforced concrete steel work when you left Mr. Karrick’s employ¬
ment on Christmas Day: how long would it have taken to complete
it in a workman-like manner? A. After T left?
Q. Yes. A. Oli. about six or seven days, if we had had the right
number of carpenters and sufficient material.
Q. Mr. Magrini. you referred to some of the steel material that
was placed upon the lot adjoining, and just outside of the building
and which remained there for some time* Did that have any effect
upon that material at all in any way? A. Well, in the natural course
the rust would corrode the steel to a certain extent.
77 Q. Did you observe any rust on that steel? A. The ma¬
terial for the first two floors was rusted because it was out there
TRUSSED CONCRETE STEEL COMPANY.
41
a long long time before wc used it. When we started the first floor we
made a run-wav; we did not have any hoisting engine whatever.
That was long afterwards; T do not know how long. If my memory
serves me right we started the first floor around about the latter
part of June.
Cross-examination.
Rv Mr. Clephaxe:
#
Q. Mr. Magrini, do you remember whether it was 1005 or 1904
when you left the building? A. That was in 1905.
Q. That was at Christmas time? A. It was Christmas day.
(}. The building at that time was not completed, as I understood
vou? A. No sir.
t
Q. So that you do not know, do you, what time the building was
actually completed? A. As to the concrete work, the reinforced
concrete work, yes sir, I do.
(). When was that? A. That was about the 15th dav of Januarv
or so—more or less.
Q. Were you there at the time it was completed? A. Yes sir;
I was living right next door. I could hear every sound that
78 was going on in the building.
Q. So that when you left on the 25th of December, 1905,
vou did not leave the citv? A. No sir, not in 1905, but I did in
• «
190fl.
Q. About what time in 1900 did you leave the city? A. About
the 22nd dav of Januarv.
(). So that vou were in the citv for about a month after vou left
^ #7 * **
the building? A. I did not leave the job until I saw the job
completed.
Q. Rut you were not under pay after the 25th of December?
A. No sir.
Q. What was your object in remaining all that time to see the
job completed when you were not being paid for vour time? A. T
was not on the job but T was out in the street in my own way. I
was not in the employ of the company at that time.
Q. You were out of employment during the whole month, were
you not? A. I told you that T left the storage on the 25th—that
is the employment of Mr. Karrick—on the 25th of December 1905.
and remained in the city of Washington until the 22nd day of
Januarv 1900.
Q. And until the 22nd day of January 1900, you had no employ¬
ment? A. T was not looking for any.
79 Q. Why did you leave the job then in December 1905?
A. I did not like the methods of Mr. Karrick, that is the
methods he employed in the way of his construction. Tt was getting
kind of dangerous. That is the only reason I left.
Q. And the only reason you left was, as I understand it. because
you did not like some of the men employed there? A. I say the
manner of Mr. Karrick in carrying on the work. I thought it
was getting kind of too dangerous.
Q. And so you preferred to be without pay rather than to be
42
FIDELITY STORAGE CORPORATION ET AL. VS.
connected with the work under j ay in the manner in which m
was currying it on? A. I do not understand that question.
Q. I say that you preferred to stay around Washington without
any compensation rather than to remain in the position during
that time? A. I do not understand that question.
Q. You felt in view of the fact that Mr. Karrick was not carrying
on the work in the wav that vou would have liked him to, that you
would rather resign and go out, and you did get out, did you not?
A. T left Mr. Karrick s employment; that is all I can tell you.
Q. You resigned, did you? A. I did because Mr. Karrick that
morning wanted to compel me to put in another panel and leave
a joint on the ninth floor and I thought that was dangerous,
80 it was not a proper construction, and I told Mr. Karrick
that he had better not do it. I said “you can do that yourself
if you so decide about it, I am not going to do it.” That was the
only reason I left the job.
Q. You did not do it. did you? A. No sir; I did not do it.
Q. And you tendered him your resignation? A. Yes sir; 1
handed Mr. Karrick the roof plans which 1 was getting ready for the
roof; at least I told Mr. Karrick I had that plan in my room, and
he sent the timekeeper and got the plan. I said “I am going to leave
your job now, Mr. Karrick; it is enough for me.”
Q. Did you hand him that resignation in writing? A. No sir;
I did not have any employment by writing, and \ did not think I
had a right, to hand in a resignation in writing.
Q. lie did not suggest to vou that vou leave the job, did he?
A. No sir.
Q. Are you sure about that? A. Yes sir.
Q. Did he not discharge you? A. No sir.
Q. Did lie not discharge you for drinking? A. No sir.
Q. Did he not discharge you twice for drinking? A. No «ir, he
never discharged me for anything.
Q. You left purely of your own volition? A. Mv own
will.
81 Q. When you left the city on the 22nd of January 1900,
where did you go? A. Well. I do not know that that has
any bearing on this case, that is with regard to my own personal
business, but T will tell you that 1 went to Pittsburg.
Q. ITow long did you stay there? A. I stayed there in Pittsburg
until T came hack to Washington.
Q. ITow long was that? A. T came back to Washington, I think,
if my memory serves me right, on the 19th day of April, 1900.
Q. So that, you were in Pittsburg about three months? A. And
I went to see Air. Karrick. I seen Mr. Karrick every time I was in
the city—T went down to the warehouse.
Q. What were you doing in Pittsburg? A. I was there in busi¬
ness.
Q. What were you doing? A. I was in business.
Q. Will you please answer my question; what were you doing
there? A. I was speculating.
Q. In what? A. In many things.
TRUSSED CONCRETE STEEL COMPANY.
43
Q. That was the only business you were doing between January
22nd, 1906 and April 1906, when you came back to Washington?
A. Yes sir.
ft2 Q. After April 1906. what business were you in? A. I
came to Washington and afterwards I built the Wiekersham
Building, in Lancaster, Pennsylvania.
Q. How long were you in Washington after April 26, 1906?
A. About three or four days.
Q. And then you went to Pennsylvania, you say? A. Yes sir;
I accepted a position with the Wiekersham Building Company and
built the new building.
Q. What was the nature of your business there? A. General
superintendent.
Q. How long were you with them? A. Until 1 completed the
j°>>-
Q. When was that? A. Eight weeks after, the 14th day of June,
1906.
Q. Then where did you go? A. I went to Columbia, South
Carolina.
Q. What was your employment there? A. T was there in con¬
ference with Mr. Do Leon of Atlanta, Georgia.
Q. How long were you there? A. I was in conference there and
accepted the job of the Sorgam Oil Co., a job that was carried on
the percentage basis. 1 accepted the position from Mr. De Leon to
superintend the construction of that house in Charleston, South
Carolina.
Q. How long were you there? A. Until the job was com¬
pleted.
S3 Q. How long was that? A. About four months time after
that—the latter part of September, 1906.
Q. Then where did you go? A. To Raleigh, North Carolina.
Q. Tn what capacity? A. As general superintendent of the Capi¬
tal Orphanage of Nazareth, two miles from Raleigh. I built the
Capital Orphanage there.
Q. How long were you there? A. T was there from Oct. 3rd or
4th to June 21st, 1907.
Q. And in their employ all that time? A. Tn their employ all
that time, yes sir.
Q. What rate of pay were you receiving?
Mr. Siodons: T object.
A. One hundred and fifty dollars a month, besides my expenses.
Q. Then where did you go? A. I went to the Jamestown Expo¬
sition.
Q. Tn what capacity? A. To have my own pleasure, after work¬
ing hard.
Q. How long were you there taking your own pleasure? A. I
was there about a month.
Q. Then where did you go? A. I went to Atlanta, Georgia.
Q. TTow long were you there? A. T was there about eight or ten
days.
44
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. On business? A. On business, yes sir.
84 Q. Then where did you go? A. 1 came back to Charlotte.
Q. How long were you at Charlotte? A. A few days.
Q. Then where did you go? A. To Raleigh.
Q. How long were you there? A. Oh. a few days. I refused to
accept a position on the new Masonic building in Raleigh.
Q. Then where did you go? A. I came back, or rather went back
to Norfolk.
Q. In what capacity? A. In my own time.
Q. Loafing? A. Well, l do not know if T intended that for loaf¬
ing: I know that I had my own idea in going there.
Q. What are you doing now? A. I am working at the Naval
Y. M. C. A. building at Norfolk. Ya., for Harry Miller of Baltimore.
Q. How long have you been there? A. I have been there since
January 21. 1008.
Q. In what capacity are you employed there? A. I am working
putting in reinforcement on that building.
Q. Mr. Magrini, you came here, as T understand it. in the sum¬
mer of 100") with Air. Karrick? A. Yes sir. in the spring of 1005.
Q. Where did you come from when you came here? A. I came
from the West.
85 Q. You were out of a job at that time, were you not? A.
I had just left the filtration plant in Washington when I
accepted Mr. Karrick’s job.
Q. And then you went West. 1 thought you said you came here
from the West? A. I came from Chicago, yes sir.
Q. What filtration plant had you just left? A. Construction
work, the same thing going on now.
Q. In Chicago? A. In Chicago, yes sir.
Q. So you were with Mr. Karrick in the spring of 1005? A.
From some time in May; I do not. remember, it was the 10th or the
15th or 12th, or somewhere around there, up until the 25th day of
December 1005, Christmas morning.
Q. Now you have stated that you are an all around consulting
man. A. Yes sir.
Q. Have you ever testified as an expert in any court? A. No sir.
Q. This is your first experience as a witness? A. Did you say as
an expert?
Q. Yes. A. T have never been in any ease whatever.
Q. So you never have heretofore l»een called upon to give any
information in court as to the method of constructing rein-
80 forced concrete work? A. T never have any information to
21 ve. All T have to give are the facts that T know.
Q. So you have not attempted to give any information in any
court in this District? A. No sir: T have bad no occasion whatever.
Q. You say you came to Mr. Karrick’s employment in answer
to an advertisement in the paper? A. Yes sir. and T showed Mr.
Karrick my character as an expert in excavation and in concrete
work, and Mr. Karrick employed me. That was a writing by the
Masonic Company of Chicago. I had been in their employ for seven
years.
TRUSSED CONCRETE STEEL COMPANY.
45 *
Q. Do you remember how ninny stories high this building is? A.
Which building?
Q. Mr. Karriek’s building. A. The warehouse?
Q. Yes. A. It is nine stories and a roof. It is 80 feet high.
Q. Do you recall when the material for the first story was deliv¬
ered? A. Yes sir.
Q. When was that? A. It was delivered over a month before—
maybe a month and a half before I started to use it. Do you mean
the first floor or the foundation?
Q. I mean the first floor, not the foundation. A. I never saw the
bill; I know how long it remained on the tracks but I could
87 not tell you how long the material was there.
Q. You do not know as a matter of fact when the material
for the first floor came, do you? A. Yes sir, it came along in May,
sometime in the latter part of May or the first part of June—I am
unable to fix the date.
Q. Did that come in connection and at the same time with the
material for the second floor? A. 1 think the two floors came to¬
gether—the first and second floor-.
Q. Are you sure it was the first and second, or the second and
third that came together? A. I think it was the first and second;
that was the first and second.
Q. That is your best recollection now that it was the first and
second? A. Yes sir; I think it was the first and second. There was
no reinforcement of the first floor, the ground floor. It was kind of
mixed up on that job there; we had gotten it mixed up in the plans
by calling the ground floor the first floor. I do not know whether
you call the second floor the first floor or not.
Q. Let us get at it in another way. Was it the ground floor and
first floor that came together? A. There was no reinforcement for
the ground floor.
Q. So there was nothing to come for the ground floor? A. Only
the footing, the foundation.
Q. Then eliminating the ground floor, if you please, it
88 was the first and second floor- that came together? A. I did
not check the iron. Mr. Karriek and Mr. Clark were check¬
ing up, and I told Mr. Karriek that it was useless to take that stuff
up because in the way it was brought it was mixed up, and Mr.
Karriek said that he found difficulty in checking that stuff up the
way Mr. Baldwin brought the stuff to the job. As a general rule,
in all the stuff that I saw coming to the job there, and in all other
jobs, it comes in big bundles which would require a crane to lift
them on the wagon, but Mr. Baldwin pulled the bars out and crissed
them and put them in the alley as the best means of transportation
he had.
Q. So it will be impossible for you to say whether it was the first
and second, or the second and third floors which came together?
A. The first tw T o floors came together.
Q. You do not know’ whether the first two floors were ordered to
come together, do you? A. I do not know’.
46
FIDELITY STORAGE CORPORATION ET AL. VS.
(}. So when they came together you were not ready to use the
second floor, were vou? A. Xo sir, none of it was ready to use.
Q. And therefore that had to stay outside in the weeds, as you say,
and it rusted to some extent, and it caused some damage, did it not,
having to remain out there in the wet, did it not? A. The delay
was caused by the strike of tlie bricklayers and the slowness of the
bricklayers, and by putting a footing under the next build-
89 ing. That was a party wall, and the District inspectors, Mr.
Karriek said, would approve or disapprove of putting a foot¬
ing under the adjoining building, and as a matter of fact the delay
was in getting the first floor up, and the delay in getting a hoisting
engine.
Q. They were not ready as a matter of fact for the material for that
second floor when it came, were thev? A. Xo sir; thev were not
ready. It was a long time before we got ready to use it.
Q. Xow you have stated that in some of the walls the bricks were
50 per cent hats. Can you tell us just which walls those were? A.
It was all the way around.
Q. Then you meant all the walls when you said some? A. Yes
sir.
Q. You were not, quite accurate when you used the expression
“some”? A. Some maybe, 10 or 15 per cent, and some maybe 50
per cent.
Q. So when you said there were 50 per cent you did not mean that
it was always 50 per cent. You mean in some cases there were only
10 or 15 per cent hats? A. Yes sir.
(}. You said that after the first gang of bricklayers loft and before
the second gang was employed, a few days elapsed. How many days
elapsed, do you know? A. Xo sir.
Q. In your experience in this kind of work, is it always possible
to replace one gang with another on the very next day?
90 A. Well, in some places we can.
Q. What has been your experience in Washington? A.
Where we employ organized labor we will have to use organized
labor. The organized man does not go on a scab job.
Q. So it was because organized labor declined to come on this
job that you could not get new men. A. I suppose the original labor
was discharged by Mr. Karriek, or quit because Mr. Karriek em¬
ployed negroes.
Q. Then he could not get a second gang for several days? A.
I do not know how manv davs, hut I know it caused some delav.
• • •'
Q. You say between the discharge of the second gang and the em¬
ployment of the third gang quite a few days elapsed. What was
the cause of that delay? A. While T was in the office one day an
old gentleman—1 have forgotten his name but he was discharged
from the Government yards here—said he would like to get a job
as bricklayer or foreman of bricklayers. I said ‘Air. Karriek has a
lot of trouble with these colored people and he may decide to make
a change: you had better go up to see Mr. Karriek”. Pie went over
and saw Mr. Karriek and he appointed this man as a foreman, and
the old colored man foreman left, and these men went over to him,
TRUSSED CONCRETE STEEL COMPANY.
47
with the exception of a very few. As soon as that new foreman went
on the job they all laid their tools down and went on a strike, and
Mr. Karriek gave this old gentleman money to go to Baltimore and
hire bricklayers there, but he never put in an appearance
01 again at the building, and I think Mr. Karriek was out at
that time about twenty dollars in the money that he fur¬
nished this man to go to Baltimore to hire bricklayers. In three or
four days these Jew bricklayers came, and they were employed by
Mr. Karriek, and T think this colored foreman—I have forgotten
his name, came hack, and the job was started again.
Q. Do you recall when the material for the sixth floor was de¬
livered at the building? A. T cannot remember the date; I can fix
the floor though.
Q. Can you not fix it approximately? A. T was very busy with¬
out bothering about dates.
Q. So you do not know much about the dates when this material
was delivered? A. No sir; I was busy about the building.
Q. And you cannot tell us when the material for the seventh floor
was delivered? A. No sir, I cannot.
Q. Nor the eighth nor the nin^h floors? A. No sir.
Mr. Siddons: Do you mean the dates, Mr. Clephane?
Mr. Clephane: Yes.
Bv Mr. Clephane:
Q. About how many forms, or sets of forms, is it customary to
use in a building of the character of this Fidelity Storage Corpora¬
tion Building? A. In a building of the same kind it could be
completed as to concrete work—that is for the skeleton of the
92 building in three months’ time, that is, from three to four
months by having at least in nine stories three or four sets
of forms; that means having a set for the first, second, third and
fourth floors, half way of the building to give sufficient time to the
four forms to stay up for the cement men to work the required length
of time.
Q. So the purchase of each additional set of forms involves an
additional expenditure, does it not? A. It would in one way, but it
would save the expense in the delay in the job.
Q. But if a man chooses to construct a building slowly he can do
it with the use of one set of forms, can he not? A. One set of forms
would be a very slow undertaking, because if you leave the forms
the required time—the time required by the plans of Mr. Karricks
warehouse—it would take for nine floors nine times twentv-one davs
%j
with one set of forms before you reach the roof, which I think was
pretty near the case in Mr. Karrick’s job; but if the material is
delivered faster than the contract for the building requires it would
require additional forms to put the material into the building.
Q. And they use the proper machinery? A. Yes sir.
Q. Are you acquainted with Mr. Layton F. Smith? A. Yes
sir.
Q. Who is Mr. Layton F. Smith? A. I think he is a representa-
48
FIDELITY STORAGE CORPORATION ET AL. VS.
live of the Trussed Concrete Steel Co. in Baltimore and in Wash¬
ington.
1)3 Q. Mr. Layton F. Smith has been instrumental in getting
you several positions, has he not? A. No sir; I have given
Mr. Layton F. Smith some jobs, as the one in Raleigh, but I was
recommended by Mr. Layton F. Smith to the Wickersham Co.
Q. So that he recommended you for at least one job, has he not?
A. Yes sir; the first job after I left the Karrick Co.
Q. Has he ever recommended you for any other job? A. No
sir.
Q. You told Mr. Karrick, did you not, that Mr. Layton F. Smith
had recommended you for several jobs? A. I thought I had done
pretty good work there at the warehouse, but I never thought the
job was any good.
Q. Referring again to the matter of your discharge for drinking,
do you not recollect after you came- A. I never was discharged
bv Mr. Kerrick.
*
Q. Do you not recollect that after you first came to Mr. Karrick’s
you turned up, having been drinking, and Mr. Karrick told you
that if it occurred again he would discharge you? A. No sir; he
never did. I have been drinking all my lifetime, and while I
know that Mr. Karrick is a temperance man and does not endorse
anybody who drinks, he knows in fact that I used to go across the
street and get mv drink once in a while, but nobodv else but myself.
Q. Do you not know that as a matter of fact that after he
94 had warned you a couple of days afterwards, he did discharge
you for drinking? A. Ho never did warn me or discharge
me.
Q. And that you were off of the job for a couple of days when
he re-employed you? A. No sir; I never was discharged by Mr.
Karrick.
Q. Were you not off the job for two or three days? A. I was off
tin* job once for putting up the fifth floor because I told Mr. Karrick
I was working long hours on the job; sometimes the hours in one
week would amount to 84, 80 and 90 hours—in fact I was working
on the job sometimes as late as 1*2 o'clock at night—and T told Mr.
Karrick that I could not keep going on at that same price and I
went to Mr. Karrick*s office; I was off the job for two days, and at
that time Mr. Karrick advertised in the local papers for a man to
superintend, with vast knowledge or something like that, in re¬
inforced concrete. Mr. Karrick could secure no one. I went to Mr.
Karrick*s office—he had removed—he was at 1320 New York Ave*
nue then, and Mr. Karrick said. ‘‘I will do that.”
Mr. Clepiiaxe: 1 move to strike that out.
The Witness (continuing): I told Mr. Karrick I would not work
under those terms any longer but whatever work T did he would
pay me for. If I did not work he would not have to pay me. Mv
first week's wages would have amounted to about fiftv dollars, or
something like that, and so Mr. Karrick agreed to give me a straight
pay at four dollars a day, no loss of time, to compensate me for the
time I left the job.
TRUSSED CONCRETE STEEL COMPANY.
49
95 Redirect examination.
By Mr. Siddons:
Q. When did this take place that you went off the job for the
few days that you mention—what time, as near as may be? A.
That was, I remember, when 1 went up to put in the fifth floor. I
cannot fix the time, I have no almanac in my brain, but I know that
was the time. The bricklayers said “Has the job gone forever.”
And 1 said “I simply left the job because I was not satisfied.” Mr.
Karriek said “1 like you very much; you are a very active man,”
and Mr. Smith, who used to visit there said, “You are a very ex¬
perienced man”; lie paid a visit there to the job every once in a
while. Mr. Karriek paid me the compliment. I worked for him
until I found that the job was too risky. 1 never had any hard
feeling toward either Mr. Smith or Mr. Karriek.
Mr. Siddons: You did not specify the time at all, Mr. Clephane,
when that so-called discharge was effected, or when Mr. Karriek
warned him.
Mr. Clephane: I said a few days after he first came on the job,
and his second discharge was December 25, 1905.
By Mr. Siddons:
( l. Mr. Magrini, Mr. Clephane asked you some questions about
the shipments or receipt of the first and second floors. Suppose that
on May IS, 1905, Mr. Karriek had ordered from the Trussed Concrete
Steel Company the steel for the second floor, stating that he would
be ready for that inside of two weeks, the letter being
90 written on May 18, 1905, and that that flooring was received
on the 7th of June by Mr. Karriek, would that have delayed
the construction of the reinforced steel work there, if that was so?
Mr. Clephane: 1 object to that question upon the ground that
it calls for the opinion of the witness, and the witness has explicitly
shown that he is not qualified to express an opinion.
(By Mr. Siddons:)
Q. I do not want an opinion from you, Mr. Magrini. I want to
know whether if these facts I have stated wero true, whether on
June 7th, 1905, the building was ready for the use of the second
floor material. A. No sir, and not for a long time afterwards.
Mr. Clephane: I think I may state here on the record that I
shall move to strike out so much of Mr. Magrini’s testimony that
seems to express an opinion upon the ground that he has not quali¬
fied himself to express an opinion in this case.
Mr. Siddons: 1 think that is all I have to ask Mr. Magrini at this
time.
It is mutually stipulated by and between the respective counsel
that on account of the prospective absence of the witness Magrini
from the city for an indefinite time his signature to the foregoing
4—2057a
50
FIDELITY STORAGE CORPORATION ET AL. VS.
deposition should be waived, the .denature of the Examiner being
sufficient.
ALEXANDER H. GALT,
Examiner in Chancery.
97 Thereupon an adjournment was taken until Monday May
4, 1908, at 2 o'clock P. M.
ALEXANDER H. GALT, Examiner.
Washington, 1). C., May 4, 1908—2 o’clock
Met pursuant to adjournment at the office of Messrs. Ralston and
Siddons, Bond Building, Washington, D. G.
Present: Frederick L. Siddons, Esq., of counsel for the complain¬
ant; Walter C. Clephane, Esq., solicitor for the defendant Karrick;
Mr. Alan Clephane for the Fidelity Storage Corporation, defendant
in both bills, and the defendant Karrick in person.
It was mutually stipulated and agreed by and between counsel
that the lawful corporate existence of the complainant is admitted
by the defendant.
It is further admitted by the defendant that the allegations of the
fourth paragraph of the original bill of complaint with respect to
the title of the real estate described therein is as alleged in said para¬
graph. and the allegations of said paragraph five of said original bill
of complaint are to be taken to be true as therein set forth.
It is further stipulated and agreed by and between the counsel
for the respective parties that the material alleged in the fourth
paragraph of the original bill of complaint was supplied by
98 the original complainant, and that it went into and became
a part of the building described in said paragraph; but the
defendants Karrick and The Fidelity Storage Corporation do not
admit that the material was delivered to the, defendant Karrick and
received bv him in accordance with the contract between him and
the original complainant and he reserves the right to establish this
fact.
It is further stipulated by and between counsel for the respective
parties that there remains unpaid of the original contract price for
the material furnished by the complainant in the original bill,
the sum of $4457.84, less certain freight charges accruing in and
about the deliveries of the eight and ninth floor and roof material,
aggregating about $145.29 and, less the sum of $24.00 claimed by the
defendant Karrick for amount paid him for certain blacksmith
work.
It is contended bv the defendant Karrick and the Fidelity Storage
Corporation that claim of Mr. Karrick against the Trussed Concrete
Steel Company, as set forth in his original and amended cross-bill,
will more than consume the entire balance of this account, which
claim, however, is not admitted by the claimant in the original bill.
It is further stipulated and agreed by and between the counsel
for the respective parties that the complainant in the original bill
caused to be filed a notice of mechanic’s lien as set forth in paragraph
6 of the original bill of complaint, and that a correct copy of the
TRUSSED CONCRETE STEEL COMPANY.
51
notice of this lien is attached to and forms a part of the said original
bill of complaint, and may be taken as proof of the filing of
99 said notice, as set forth in said paragraph, the defendants
Karrick and the Fidelity Storage Corporation contending
however, that the notice of mechanic's lien aforesaid is not sufficient
localise it does not specifically set forth the name of the party against
whose interest a lien is claimed, as required by the Code of laws
applicable to the District of Columbia.
It is further stipulated and agreed by and between the counsel
for the respective parties that the complainant in the original bill of
complaint served a copy of the aforesaid notice of mechanic’s lien
upon the defendant Fidelity Storage Corporation, and that it served
upon the defendant Washington Loan and Trust Company, the
notice referred to in paragraph six of the original hill of complaint, a
copy of which is attached to the same as Complainant’s Exhibit
No/ 3.
Counsel for the complainant in the original bill of complaint,
offers in evidence the contract between it and the defendant James
L. Karrick, and it is stipulated and agreed by and between counsel
for the respective parties that the Examiner may copy said contract
into the record.
The contract referred to is as follows:
“We will deliver F. O. B. Cars Washington the necessary Kahn
sheared bars required in the construction of the eight lofts and roof
and footings as well as lintels over 1st story openings in front and
one in side walls of the Karrick Warehouse, sixty feet (60'-0")
by two hundred feet (200'-0") supported on two division walls
twenty feet (20'-0") on centers, the beams being seven feet
100 (7'-0") on centers, the tloors designed for two hundred
pounds (*200) per sq. ft. live load, the roof for forty pounds
(40) per sq. ft. live load, for the sum of $1 5500.00 the steel will be
delivered ;ts desired F. O. B. Cars Washington, payments to be made
for each shipment thirty (30) days net cash after arrival of material
at Washington. We will also furnish free of charge general super¬
vision and all drawings necessary to show construction. We will
also furnish a working foreman to be in your employ, who will be
under our instructions capable of constructing the reinforced concrete
work. Provided you will use proper materials the construction
which we design will be capable of sustaining the test loads required
by the Inspector of Buildings namely three (3) times the live and
one (1) time the dead load in addition to its own weight. Should
the footing reinforcement be eliminated please deduct $500 00
(Signed) TRUSSED CONCRETE STEEL CO.
LAYTON F. SMITH, Mgr.
2-15-05, Balto., Md.”
“To .Limes L. Karrick, Washington, D. C.”
“Accepted subject to approval of W. L. & T. Co. or whoever
advances monev in trust, also approval of Building Inspector of
Wash. D. C.
(Signed) JAMES L. KARRICK,
1333 G St. N. W "
Feb. loth, 1905.
52
FIDELITY STORAGE CORPORATION ET AL. VS.
101 Counsel for the complainant in the original hill of com¬
plaint offers the following letters and copies of letters in
evidence, and it is stipulated and agreed by and between the counsel
for the respective parties th.rt copies of letters so ottered are true
and correct copies.
Letter from defendant James L. Karrick to the Trussed Concrete
Steel Co., dated May 0, 1905;
Copy of letter from the Trussed Concrete Steel Co. to the defendant
Karrick, dated May 16, 1905;
Letter from defendant James L. Karrick to the complainant
Trussed Concrete Steel Company, dated May 18, 1905;
Copy of letter from the complainant Trussed Concrete Steel
Company, to defendant Karrick dated May 20, 1905;
Letter from defendant Karrick to the Trussed Concrete Steel Co.,
dated May 24, 1905;
Copy of letter from the complainant Trussed Concrete Steel Co.
to defendant Karrick, dated June 1. 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated June 12, 1905 :
Copy of letter from complainant Steel Co. to defendant Karrick,
dated June 19. 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated June 21, 1905. with enclosure referred to;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated July 5, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated July 10, 1905;
102 Copv of letter from complainant Steel Co. dated Julv
12, 1905;
Letter from defendant Karrick to complainant Steel Co., dated
July 12, 1905;
Letter from defendant Karrick to complainant Steel Co. dated
July 14, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated July 18, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated July 21, 1905:
Copy of letter from complainant Steel Co. to defendant Karrick,
dated July 26, 1905;
Telegram from complainant Steel Co. to defendant Karrick,
dated July 27, 1905;
Letter from defendant Karrick to complainant Steel Co., er¬
roneously dated August 26, 1905. It is stipulated and agreed by and
between counsel for the respective parties that the true date of this
letter is Julv 26, 1905;
Copy of telegram from complainant Steel Co. to defendant Kar¬
rick, dated July 28, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated July 28, 1905;
Letter from defendant Karrick to complainant Steel Co., dated
July 29, 1905;
TRUSSED CONCRETE STEEL COMPANY. 53
Copy of letter from complainant Steel Co. to defendant Karrick.
dated July 31, 1905;
Letter from defendant Karriek to complainant Steel Co. dated
August 5. 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated August 8, 1905;
103 Telegram from defendant Karrick to complainant Steel
Co., dated August 11, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated August 12, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated August 17, 1905. together with billing referred to in said
copy of letter. It is stipulated and agreed by and between counsel
for the respective parties that this letter erroneously refers to the
steel bars for the second floor. This should be the fourth and fifth
floors;
Letter from defendant Karrick to the complainant Steel Co., dated
August 28, 1905, other than the pencil memoranda;
Copy of letter from complainant Steel Co. to defendant Karrick.
dated August 30, 1905;
Letter from defendant Karrick to the complainant Steel Co.,
dated September 1, 1905;
Letter from defendant. Karrick to complainant Steel Co., dated
September 15. 1905;
Letter from defendant Karrick to the complainant Steel Co.,
dated October 14. 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated October 10. 1905;
Copy of letter from complainant Steel Company to defendant
Karrick. dated October 24. 1905;
Letter from defendant Karrick to complainant Steel Co., dated
October 25. 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated November 6. 1905;
104 Copy of letter from complainant Steel Co. to defendant
Karrick. dated November 7, 1905;
Letter from defendant Karrick to complainant Steel Co. dated
November 9, 1905;
Letter from defendant Karrick to complainant Steel Co. dated
November 10, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated November 13, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated November 13. 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated November 18, 1905;
Copy of letter from complainant to Steel Co. to defendant Kar¬
rick. ciated November 22, 1905, other than the pencil memoranda;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated November 25, 1905;
Copy of letter from complainant Steel Co. to defendant Karrick,
dated December 2. 1905;
54
FIDELITY STORAGE CORPORATION ET AL. VS.
Copy of letter from complainant Steel Co. to defendant Karrick,
dated December 7. 100.");
Letter from defendant Karrick to complainant Steel Co. dated
December <S, 190.";
Copy of letter from complainant Steel Co. to defendant Karrick,
dated December 11. 190."):
Copy of letter from complainant Steel Co. to defendant Karrick.
dated December 19. 190."), other than pencil memoranda;
Copy of letter from complainant Steel Co. to defendant
105 Karrick. dated December 27. 1905.
It is further stipulated and agreed by and between the
counsel for the respective parties that the defendant Karrick admits
the receipt by him of the first shipment of steel under the contract
set out in the original bill of complaint- on May 24. 1905; that the
material for the second and third floors was received by tbe defend¬
ant Karrick on June 7. 1905. it having been shipped by the com¬
plainant Steel Company on May 29. 1905; that the third shipment,
consisting of material for elevator opening was received by tbe
defendant Karrick prior to June 21. 1905. having been shipped by
the complainant Steel Company mi June 0, 1905.
The fourth shipment, consisting of stair steel was received bv the
defendant Karrick a dav or two before Julv 10. 1905; that the de-
fendant Karrick ordered the material for tin* fourth floor on Julv
20. 1905; the material for tin* fifth floor on August 5. 1905. as per
his letters alrcadv offered in evidence; that the material for these two
floors was shipped by the complainant Steel Company to the defend¬
ant Karrick on August 15. 1905. and was received hv him on August
23, 1905.
That the material for the sixth floor was ordered bv the defendant
Karrick on August 28. 1905 for delivery on September 28. 1905;
that it was received by him mi October 1 1. 1905.
That tbe defendant Karrick ordered the material for the seventh
floor bv letter dated September 15. 1905. to be delivered bv October
12. 1905.
100 Without concluding the introduction of documentary eve
deuce, an adjournment was taken to meet on notice.
Washington, D. C.. July 31. 1908.
Met pursuant to notice at the office of Messrs. Ralston and Sid-
dons. Bond Building. W ashington. D. C., for the purpose of taking
testimony in the above entitled cause.
Present: Frederick L. Siddons, Emj.. solicitor for the complainant;
also Walter C. Clephanc. Esq., solicitor for the defendant, and the
defendant Karrick in person.
Tt. was further stipulated and agreed by and between counsel for
the respective parties that the defendant Karrick received the ma¬
terial for the seventh floor of the building referred to in tbe plead¬
ings in this cause on October 27. 1905; that the defendant Karrick
ordered under date of October 20. 1905. four bars of steel from tbe
original complainant to b<- sent to him by ex?>re<s. and that be re¬
ceived the same on or about the 11th day of Xovemt»er 1905; that
TRUSSED CONCRETE STEEL COMPANY.
55
the defendant Karrick ordered the material for the eighth floor of
the said building on October 25, 1005 for deliver}" by November 12,
1905, and he received the same on November *20. 1005; that the de¬
fendant Karriek ordered the material for the ninth floor shipped not
later than November 14. 1005, and that he unloaded the same from
the cars of the railroad company in Washington, D C., on December
0, 1005; that the defendant Karriek on December 9, 1905, ordered
the tenth and last material for the roof of said building, to be
107 shipped by the complainant company by November 28, 1905,
and that he unloaded the same from the railroad cars in
Washington, D. C., on December 12, 1005.
Without taking further testimony at this time, an adjournment
was had to meet on notice.
Counsel for complainant subsequently announced the close of
his testimonv in chief.
ALEXANDER H. GALT,
Examiner.
108 Testimony on Behalf of Defendants.
Filed April 22, 1900.
In the Supreme Court of the District of Columbia.
Equity. No. 20091.
Trussed Concrete Steel Co., Complainant,
vs.
Fidelity Storage Corporation et al., Defendants.
District of Columbia,
County of Washington , ss:
Be it remembered that at an examination of witnesses begun and
held on the 12" day of December, A. D. 1908, and continued from
time to time until the 10" day of January, A. I). 1909, when the
within depositions were taken; I Alexander II. Galt, an Examiner
in Chancery, did cause to be personally present at the office of Wai¬
ter C. Clepiiane, Esquire, Fendall Building in the city of Washing¬
ton. in said District, James L. Karriek, Gilbert S. Clark, Percival
II. Smyth, Chas. II. Sparshott, A. P. Gant, Chas. Gregg, II. M.
Lanford, C. S. Ililbert and David T. Cissell to testify on the pan
and behalf of the defendants, in a certain cause now pending in the
Supreme Court of the District of Columbia, wherein Trussed Con¬
crete Steel Co. is complainant and Fidelity Storage Corporation is
defendant.
100 Which said examination was had after due notice and at
which on the day aforesaid, there were present F. L. Siddons,
Esquire, for the complainant, and Clephane & Clephane, Esquires
for the defendants.
ALEXANDER H. GALT,
Examiner.
5 *
FIDELITY STORAGE CORPORATION ET AL. VS.
Washington, D. C., Dec. 12, 1908.
Met pursuant to notice at the ollic-t* of Walter C. Clephane Esquire,
Feudall Pudding. Washington J). C.. on the above date for the pur¬
pose of taking testimony on behalf of tlie defendants in the above
entitled cause.
Appearances: Frederick L. Siddons Esquire, Solicitor for the Com¬
plainant; Walter C. deplume Esquire, Solicitor for the Defendant
Karrick; and Allan (). Clephane Esquire, Solicitor for the Fidelity
Storage Corporation: also the defendant Karrick in person.
It was mutually stipulated and agreed by and between counsel
that the testimony taken at this time shall apply to both the issues
of the cross bill and the original bill in this cause.
Counsel for the defendant Karrick offers in evidence the following
letters and copies of letters, and it is stipulated and agreed by and
between counsel for the respective parties that copies of letters
110 so offered are true and correct copies.
Letter to tlu* defendant Karrick from the Trussed Concrete
Steel Company, dated April 13. 1905:
Letter from the defendant Karrick to the Trussed Conerete Steel
Company, dated about April 14. 1905;
The pencil memorandum on the face and back of this letter are
not part of the letter.
Letter from Layton F. Smith to the defendant Karrick, dated
June 5. 1905;
The pencil memorandum on the back is not a part of this letter.
Letter from the defendant Karrick to the said Company dated
June 21, 1905;
Letter from the Trussed Concrete Steel Company to the defendant
Karrick dated June 27. 1905:
Letter from the Trussed Concrete Steel Company to the defendant
Karrick dated September 22. 1905;
Letter from the defendant Karrick to the Trussed Concrete Steei
Company, dated September 28, 1905.
Letter from the Trussed Concrete Steel Co. to the defendant Kai-
rick dated October 2. 1905;
Letter from the Trussed Concrete Steel Company to the defendant
Karrick. dated October 4. 1905;
Copy of letter from the defendant Karrick to the Trussed Con¬
crete Steel Company, dated November 4. 1905;
Letter from the defendant Karrick to the Trussed Concrete Steei
Companv, addressed to Pittsburg. Penna.. dated November 9,
1905.
Ill Mr. Siddons: That letter goes in subject to comparison for
accuracy with the original.
Mr. Clephane: Yes.
Letter from the Trussed Concrete Steel Company to the defendant
Karrick, dated November 11. 1905.
Mr. Siddons: This letter is objected to as on its face it purports to
be written by some one who is not known to counsel for the Company
and be reserves the right t<» object to the letter on the ground it was
beyond the authority of the writer to send.
TRUSSED CONCRETE STEEL COMPANY. 57
Copy of letter from defendant Karrick to the Trussed Concrete
Steel Company, dated January 15. 1906.
Mr. Siddons: That letter goes in subject to comparison with the
original for the purpose of accuracy.
Counsel for the defendant Karrick offers in evidence the certified
transcript from the records of the United States Weather Bureau,
of the records showing the temperature in Washington, D. C., during
the months of October. November, and December 1905, and January,
1906.
Mr. Siddons: 1 reserve the right to challenge the accuracy of this
copy.
James I.. Karrick. one of the defendants, having first been duly
sworn as a witness in his own behalf, testified as follows:
By Mr. Clepiiane:
11*2
Q.
name
Mr. Karrick. you are the same James L. Karrick who is
d as a defendant in the original bill in this cause?
A. I am.
Q. Where do you reside? A. In Washington, D. C. No. 2120
Bancroft Place.
Q. Have you any connection with the Fidelity Storage Corpo¬
ration? A. Yes sir.
Q. What is your official position, if any, in that company? A.
I am treasurer of the company.
Q. Who built the warehouse of the Fidelity Storage Corporation at
1420 U Street? A. I did.
Q. Did you have a building contract? A. With the Fidelity
Storage Company?
Q. Yes sir. A. Yes sir.
Q. Will you look at the paper which I now hand you and stale
what that is. if you know? A. (After examining.) This is the con¬
tract.
Q. Whose signature is that under the words “Accepted May 3rd”?
A. That is my signature.
Q. Whose signature is this under the name “Fidelity Storage Coi-
poration”? A. Henrietta B. Karrick.
Q. What was her position with reference to the Fidelity
113 Storage Corporation? A. Secretary of the Company.
Q. When was this contract executed, if you know? A.
On May 3. 1905.
Q. And it appeared to bo marked “Accepted May 3, 1905.” Do
von know whether or not it was accepted at that date by you? A.
Yes sir.
Mr. Clepiiane: This contract is offered in evidence.
Tho paper is marked for identification Defendant’s Exhibit J. L.
K. No. 1.
Mr. Siddons: The paper offered is objected to on the ground that
authority to enter into it on the part of the Fidelity Storage Cor¬
poration is not shown, although it purports to have been authorized
by the action of the directors of the corporation. It is further ob-
58
FIDELITY STORAGE CORPORATION ET AL. VS.
jected to on the "round that it nu: ;ifestly is not complete in so far
as it depends upon plans and specilications referred to in it which
are not offered.
Q. Did you have any by-laws of the Fidelity Storago Corpora¬
tion? A. Yes sir.
Q. Have vou those hv-laws with you at this time? A. No s ; r, I
have not.
Q. Do you know whether there was anything in those bv-laws
relating to the powers of the secretary of the corporation? A. I do
not recall just what they were.
Q. Were you present at any meeting of the board of directors
which authorized that this contract be entered into?
114 Mr. Siddons: I object. The records of the corporation are
the best evidence of any corporate action taken by the di¬
rectors.
A. I was.
Q. When was that meeting of the hoard of directors held? A.
I think it was May 3, 1905.
Q. Do you recall what was done- at that time with regard to
authorizing any one to enter into this ontract?
Mr. Siddons: I mako a similar objection.
A. Yes sir
Q. What was done at that time?
Mr. Siddons: 1 object to the question as an incompetent method
of proving the action of the hoard of directors of the corporation. It
is secondary evidence merely.
% «
A. The hoard of directors authorized the entering into a contract
with me to erect the building as set out in that contract.
( l . That contract provides that the warehouse is to be completed
and possession given to the Fidelity Storago Corporation on or about
November 15, 1905, and the warehouse referred to is a storage ware¬
house on the lot of the Fidelity Storage Corporation, numbered 18
in square '205. Is that the storage warehouse which is the subject
matter of this suit? A. It is.
Q. Was the warehouse completed and possession given bv
115 November 15, 1905? A. No sir.
Q. W hen was the warehouse completed? A. I cannot say
just when. The storehouse was accepted by the company January
'25, 1906, and that was a matter of compromise; it was not com¬
pleted at that time hut there was enough completed so that the com¬
pany accepted it as being completed. After I had done some other
things for the company this date was fixed as a matter of com¬
promise.
Q. The contract provides for a penalty of $25 per day for each
day’s delay beyond November 15. 1905, as liquidated damages for
such delay. IVas the sum of $25 per day, or was any sum deducted
from the contract price which otherwise would have been payable
to you by the Fidelity Storago Corporation because of this delay?
A. There was.
TRUSSED CONCRETE STEEL COMPANY.
59
Q. How much was deducted? A. Twenty-five dollars a day for
seventy days.
Mr. Siddons: Counsel for complainant objects to the foregoing
question and answer. If there was any corporate action taken by
the corporation in fixing this so called penalty, counsel for the orig¬
inal complainant calls for the production of the records of the cor¬
poration showing such action, if any.
Q. Now, Mr. Karrick, I wish you would tell us what caused the
delay in the completion of that building? A. The delay was by our
not receiving the steel at the time it was ordered—the steel
11() from the Trussed Concrete Steel Company.
Q. After the steel arrived from time to time, which was
received from the Trussed Concrete Steel Company, what diligence
was used in completing that building?
Mr. Siddons: 1 object to the form of the question. What dili¬
gence' is general. The witness ought to be asked what was done,
not asking him to characterize the thing done or the things done.
Q. Well, if my Brother Siddons prefers the question in another
form, 1 will put it in that shape. What was done by you after the
receipt of the steel in order to complete the building? A. We put
it into the building and completed that lloor that we had the steel
for.
• (J. What effort did you make, if any, to expedite the work? A.
We put the floors in usually in two weeks’ time; sometimes we got
them in in ten days when* there was any special rush—if we thought
there was a possibility of getting the steel for the next floor we some¬
times got it in in ten days’ time. Unless the weather was bad we
could always get a lloor in in ten days’ time. If we knew the steel
was not coming we did not press it so hard and then it usually took
two weeks.
Q. Do you recall when the steel actually arrived on time from
the Trussed Concrete Steel Company? A. The steel for the first
three floors we got in time. We were a little slow in getting those
Moors in because our force was not broken in. When we put
117 in the following floor we did it in better time.
Q. At any time during the process of the construction of
that building, did it take actually more than two weeks to put in a
floor? A. At no time except when freezing weather came on. That
delaved us on the seventh floor.
Q. Do you recall when the freezing weather first set in? A.
About the 1st of November.
Q. And what effect did that have upon the work, if any? A. In
the first place it delayed us some days. We were unable to do much,
if any, work, putting in concrete on account of the danger of freez¬
ing. Then it delayed us in taking out the forms because it delayed
the setting of the concrete.
<}. Bight there let me ask you what you mean by “forms”? A.
We had to construct with reinforced concrete. In order to put that
reinforced concrete in we made temporary forms of wood; we built
a Moor and a place for each beam. I have a photograph—not with
60
FIDELITY STORAGE CORPORATION ET AL. VS.
me but I can bring it. bv which 1 could explain a good deal better.
Then on those forms after they are erected—those temporary forms—
we place the wet concrete and bed in that this steel. Those forms
have to remain until the concrete is set sufficiently hard to carry its
own weight and the weight of the workmen who are to go on it.
Q. II ow long did that take, as a rule? A. It varies a good
11<S deal according to the temperature; in ordinary weather, or
ordinary temperature, when it is not freezing, about five to
six days; then it would probably be set. We usually allowed a little
longer time than that before we took the forms out.
Q. Did you have any conference with any representative of the
steel company with regard to the proper time of taking the forms
out? A. Yes sir; I had a great many conferences with Mr. Layton
F. Smith, local representative of the Trussed Concrete Steel Com¬
pany.
Q. Did he give you any instructions or suggestions as to when to
remove those forms? A. Yes sir; he told us on each floor when it
was safe to remove those forms up. I think, to the sixth floor.
After that we removed them on our own judgment.
O. Whv was that? Whv did vou not wait for Mr. Smith before
' • • •
removing the forms after that period? A. After the sixth floor?
Q. Yes. A. We could not get Mr. Smith to come over as fre¬
quently as he had in the earlier construction. Mr. Smith’s office
was in Baltimore.
Q. After Mr. Smith cea>ed to come over, did you at any time
remove the forms in a shorter period than he had been accustomed
to direct thev should he removed? A. No sir: in even* case it was
• •
considerably longer. We wanted to be absolutely sure that the
concrete was hard enough, and further than that the cold weather
having set in we were obliged to give it a good deal more
110 time. When you get near freezing weather the concrete sets
verv slowlv, and it takc> twice and sometimes three times
« i /
as long to set.
Q. Please tell us just what effect freezing weather would have
on concrete work? A. Tf the concrete freezes and thaws on the
same day it would ruin it; it has to be taken out. If the top
freezes that top will come right off; it absolutely destroys concrete if
it freezes. Tf it freezes all the wav through it would have to he
taken out as it has absolutely no strength.
Q. Did any of the concrete work, as a matter of fact, freeze all
the way through? A. No sir.
Q. TTow far down did it freeze below the surface? A. About
half an inch on the eighth and ninth floors.
Q. Did any of that concrete as a matter of fact scale off as a
result of the freezing? A. Yes sir.
Q. On what floors? A. On l>oth the eighth and ninth floors;
the eighth floor about one-half of the floor, and on the ninth floor
about 150 feet—about 50 feet on the north end remained good, but
there were 150 feet toward the south that nearly all of it froze and
came off.
Q. Ts it possible to replace concrete work which scales off so as
TRUSSED CONCRETE STEEL COMPANY.
61
to have it in goad condition? A. It is a very difficult
1*20 proposition, although it may be possible. I have seldom been
able to do it. I have had a number of contractors figure on
replacing this surface, but have never found one to guarantee that
it would stick. It is a very difficult thing to get new concrete and
old concrete to stick together. The topping or surface has to be
put on before the base has set to make a good job.
Q. Did you make any efforts to prevent this concrete work from
freezing? A. I did.
Q. When? A. All the time in freezing weather, every day when
it seemed that it was going to freeze. We took extra precautions to
prevent it from freezing. Those precautions I talked over with
Mr. Layton F. Smith and did what la 4 suggested was the proper thing
to do to prevent freezing.
Q. Let me ask you there again, if 1 have not asked it before, who
Mr. Layton F. Smith was? A. 1 think I stated that he was the
local representative of the Trussed Concrete Steel Company.
Q. Now you may go on and state exactly what precaution you
took to prevent freezing from affecting vour work? A. We bought
a quantity of canvas to be used to cover the surface of the new work.
That we did each day and we also had canvas and burlap used to
cover the opening between the floor that was completed and the por¬
tion of this floor that was uncompleted. Is that clear?
121 Q. You mean to say that a portion of the floor which had
not been completed was practically simply an opening which
had not been floored over? A. It was an opening; I do not know
exactlv how to describe that so that vou will understand it. Sav
%/ %j %j
that this (indicating) is a completed floor of the building. Now
this is the one we are working on and we get to this point over here;
that is open. The freezing air could get under this floor. We hung
burlap and canvas down in front of that opening to keep the cold
air out, and under the floor we built fires according to the weather.
Q. That was under the floor under construction? A. That was
under the floor that we were at work on that was not set. We
placed these stoves underneath and left temporary holes there
through the concrete and let the smoke rise up through the concrete.
Then over the surface of the new concrete we used horses, set horses,
and on those horses we set planks about two feet above the surface
of the concrete.
Q, What do you mean by the term horses? A. Carpenters un¬
derstand that. It is a long timber standing on four legs.
Q. It is not a living horse? A. No sir; it is about two or three
feet high. On those so-called horses we put long planks and over the
planks we put canvas covers and weighted this down, and in very
cold weather we put straw on top to keep the frost from coming
through this canvas. The hot air and smoke from the stoves under¬
neath would spread out in this space underneath the canvas
122 and on top of this concrete. That was the original precaution
that was taken to keep the concrete from freezing. The
concrete did not freeze because the stoves kept the space warm.
Q. Do you know of any other or better method to prevent the
62
FIDELITY STORAGE CORPORATION ET AL. VS.
concrete from freezing than that? A. Yes; we found that this was
the process outlined by Mr. Smith, and recommended by him to
prevent freezing. We found that that did not prevent freezing
in even* case. It did prevent it from freezing underneath but the
surface froze at times. Then we took additional precautions. We
built fires as the weather got colder—some nights it would be colder
than on others, and as tin* weather got colder, we ran iron wheel¬
barrows under the green part and built fires in those wheelbarrows
to give additional heat. The stoves we found were not sufficient.
Q. Do you mean that those wheelbarrows were placed on top of
the work under construction or on the floor below? A. On the
floor below, and the fire was kept going all night: we kept a man
there all night to keep the fires from going out, and the hot air
and smoke from the floors would go under this room cut off by the
canvas at one end. and the heat would go up through the openings
left in the green concrete and spread out over the top.
Q. Could your men perform a full day’s work in setting that
concrete when the weather was cold? A. No sir, they could
not.
1*23 Q. About how many days do you suppose they were un¬
able to perform a full day’s work?
Mr. Siddons: I object to the witness’ supposition. Tf he cannot
testify to the fact I do not think his testimony should go in.
• «/ “
Q. As a matter of fact, how many davs were there that vour men
could not perform a full day's work in laying that concrete, com¬
mencing with the 1st of November, and from that time until the
25th of January?
Mr. Siddons: Mr. Olephanc. I think I ought to be permitted to
ask Mr. Karriek a question here.
Mr. Clepiiaxe: Very will, sir.
By Mr. Siddons:
Q. Mr. Karriek, was any time kept of your men? A. Yes sir.
Q. By whom? A. Do you mean in this freezing time?
Q. Yes. A. A man named Smyth.
Q. Did he keep a time book? A. Yes sir.
Mr. Siddons: I shall object to the witness testifying as to the time
of the men since there is a permanent record.
The Witness: The time book would not show this. I do not
think you understand it. The men worked on full hours and on
%
full days, but they had to stop putting in concrete sometimes as
early as 2 or half past 2 o’clock in the afternoon because it would
begin to freeze at 4 or 5 o’clock or we would think it was
124 going to freeze, and we would have to stop, as there was
danger of its freezing. If it did not actually freeze it felt
like it was going to freeze, and we thought it was going to freeze,
and we would have to stop putting in the concrete. Those men
would be busy putting the horses in and covering the cement with
canvas and straw and bringing up the coal to prevent freezing.
TRUSSED CONCRETE STEEL COMPANY.
63
There was quite a loss of time c cry afternoon, 1 believe, from the
1st of November until the 25th of January. Some nights it did not
freeze but we were afraid it was going to freeze and we did not dare
to leave these precautions undone. We would cover the cement
with a canvas anyway, and if we thought it was not going to freeze
possibly we would not build a fire that night, but we did not dare
to risk it. If it froze right through, the whole thing would have to
be cut out.
By Mr. Clephane:
Q. During that period that you have just mentioned about what
time, on an average, did the men quit the actual construction work
in the concrete and commence to take the precautions to which you
have referred? A. I should say about M o’clock; that would be the
average time, but sometimes it was a little earlier and sometimes they
worked later if the weather appeared to be mild.
Q. What constitutes a full day’s work in concrete construction?
A. Nine hours' work.
Q. And your men went to work at what hour? A. Seven-thirty
o’clock in the morning.
125 Q. And quit when? A. They quit at five and half an
hour for dinner.
Q. During this period to which you have just referred when the
men would come to work at seven thirty o’clock in the morning,
could they commence immediately upon the work of construction?
A. No sir; first they had to clear away all this canvas and planks
and material that we had to put up to prevent the concrete from
freezing. Then in some cases, in fact every morning, I believe, or
nearly every morning, we had to wet down the forms to draw the
frost out of them. If there had been any frost in them we would
pour water over the forms to draw the frost out of the forms. We
would not dare to place concrete in there unless we did that.
Q. IIow much time was consumed on an average by your men in
removing these temporary contrivances which had been put up
to prevent freezing every morning during this period? A. I should
say on an average of an hour?
Q. Each day? A. Each day, yes sir; sometimes they took longer
because if it was freezing weather in the morning we could not begin
to put in concrete right away. Then if it was cold weather we tried
to put in concrete, or did put in concrete frequently by heating the
gravel and sand on the ground, putting it over fires which were
built there. We built some ovens and covered those ovens with iron
plates and then threw our gravel and sand on to those iron plates
and got it heated before we put — in the concrete mixer.
126 We further heated the water that the concrete was mixed with
so as to have the concrete warm when it was put on the build¬
ing, and that would hasten the setting before it got intensely cold at
night.
Q. Why did you not abandon the work of construction during
the cold weather and wait for the warmer weather in the spring? A.
I felt it would be a tremendous loss if we did that.
64
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. In what way? A. W hy partly through this $25 a day penalty
that I would be subjected to, and even greater loss to the Fidelity
Storage Company in which I was interested. They would not be
able to do any business. It would throw them out almost entirely
of another year’s business. The heavy business in storage comes in
early in the spring, and if the building was not ready early in the
spring to take care of the spring business there would be almost no
use of being in business for another year.
Q. Did you have on hand a sufficient number of men available
and a plant sufficient in character to have completed your work by
the date named in the contract, November 15th? A. We did.
Q. W as there any other reason which prevented the completion
of the work bv November 15th besides what von have already re-
lated? A. None whatever. There was no delay for anything except
for steel.
127 Q. You have said that this delay before the building was
turned over to the Fidelity Storage Corporation was for 70
days? A. That was what we compromised on between the Fidelity
Corporation and myself. There was actually considerable more delay
than that.
Q. Aside from the los< of time by your men in doing the concrete
work, what other element of damage did vou sustain bv reason of
this delay? A. The delay in throwing us into freezing weather
necessitated making another set of forms for half the building.
W’e started with two complete sets. Mr. Smith and I talked that over
a good deal when 1 first started whether we needed as many as two
complete sets, but wc finally divided that that would be ample to com¬
plete the building in the time specified. W’e found that it would have
been ample if we had not been thrown into this freezing weather,
but when we got into the cold weather we did not dare to remove the
forms; it would not have been safe to remove the forms from under
the concrete anvwav in a shorter time than we did before the weather
« •
began to freeze. When we found that we were going to be thrown
into freezing weather I made this set of forms to cover one-half of
the building.
Q. What did those forms cost you? A. They cost me a good
deal; more than I put in my bill, as I found by going over the matter
more carefully than I did at that time. I have some figures here of
the items.
Q. I wish you would tell us what those forms cost you and
128 how you arrived at that result? A. The forms cost me—
it is hard to think of the items—but T have here items that
I have got hold of. It cost $1054.
Q. How did you figure that out? A. I could give you the details
of it. W’e make a set of forms that we called, on the building, doors.
They were three by six, those doors—because everybody is more
familiar with them by calling them doors. To make those forms
it took eleven thousand feet of lumber. This lumber I estimate at
20 dollars a thousand.
Mr. Siddon^: I object to the answer as to the estimate of the wiir
ness. Is it agreed that this testimony goes in subject to appropriate
TRUSSED CONCRETE STEEL COMPANY.
65
objection as to the competency of this witness, and proving the cost
by estimates? If the contract for the construction of those forms and
their erection was in writing it should be produced.
By Mr. Clephank:
Q. That necessitates my asking you at this point how long you
have been engaged in the business of contractor and builder? A.
About 24 years.
Q. Where? A. In Boston, Mass.; Denver, Colo.; and Washing¬
ton, D. C.
Q. During that time what experience have you had in the matter
of the construction of buildings? A. I put up in the neighborhood
of 300 buildings.
Q. Have you had occasion to buy building material during
129 that time? A. I have.
Q. What did that building material consist of, generally
speaking? A. Everything that went into a building, lumber, brick,
mortar and concrete, steel.
Q. Are you familiar with the price of good material? A.l am;
I ought to be. Those buildings cost, I should think, in the neigh¬
borhood of $3,000,000 that 1 put up, and I bought every dollar's
worth of material that went into all of them.
Q. Are you familiar with the prices of building material in the
city of Washington? A. Yes sir.
Q. How long have you been familiar with those prices? A. About
ten years.
Q. How long have you been engaged in constructing buildings
here? A. About ten years.
Q. Are you familiar with the price of lumber in the yetirs 1905 and
1906 in Washington? A. Yes sir, 1 am.
Q. Now I would like you to tell me, Mr. Karrick, what kind of
lumber went into these forms? A. It would be called a number
two Virginia pine. It was dressed on both sides; seven-eighths of an
inch thick—that is on those forms that I started to tell you
130 about. There were other kinds of lumber of different thicK-
ness that went into other portions that I have not come to
as yet.
Q. I am talking now — the forms which you said you were obliged
to construct to complete this work, this extra half set of forms? A.
Yes.
Q. Was the lumber that you used in the construction of those
forms lumber which was appropriated for that kind of work? A.
It was.
Q. Will you state what the market price of that kind of lumber
was in the District of Columbia at the time at which you ob¬
tained it?
Mr. Siddons: Objected to as immaterial and irrelevant.
A. That lumber would have cost $24 a thousand.
Q. Why did you only put it in at $20 a thousand? A. I put it
in at $20 because those 11,000 feet that I started to tell you about
was lumber that had been used for about sixty days.
5—2057a
66
FIDELITY STORAGE CORPORATION ET AL. V9.
Q. Where and under what circumstances? A. This particular
lumber was used in what was called an outdoor theater built just oti'
of Connecticut Avenue beyond the Connecticut Avenue bridge. I
bought that theater and took this lumber out of it. The lumber
was as clean the day we got it almost as the day it came out of the
yard.
*
Q. Was $20 a thousand a fair market value of that lumber
131 at the time you used it in the construction of those forms {
A. It was; I think you could have used it in any other build¬
ing.
Mr. Siddoxs: The question and answer are both objected to as
not the proper form of proving the damage alleged to have been
inflicted, and I shall move to strike the answer out.
Q. Now, I would like to have you state again, or resume your
statement, as to the way in which you arrived at the cost of that extra
half set of forms? A. For making those doors it required 11,000
feet of lumber, which is worth $220. The labor in making those
forms, which numbered 330, came to 80 cents each, $204. In addi
tion to the above we had 112 beam boxes as we call them; those were
forms in which the beams were cast. The beams projected below
the ceiling just about like those beams (indicating in the room;,
and we made boxes to cast those in. Those boxes contained 50 feel
of lumber, which, at the same price of lumber, would come to a dollar.
'File labor on those boxes would come to $1.50 each, making tiie
total cost of the beam boxes, $280. The top and bottom stringers
were comprised mostly of two by eight lumber; they contained 12,000
feet of lumber which was worth $240. The struts or studding, that
is, the posts that rest on the finished Hour and carried the forms
overhead, were three by four, containing 12.000 feet of lumber,
which would be worth $240. The labor in cutting and fitting tliue
struts would l>e $00. The bracing l>oards—those were boards that
were used for the horizontal bracing of those struts, so
132 that the forms would not shake or move while we were pit¬
ting in the concrete, took 8,000 feet of lumber worth $100.
The lal>or in cutting and fitting that 8,000 feet was $40. The block¬
ing, wedging and pieces that were used amounted to 4,000 feci,
which was worth $80, and the lalxn* of cutting those block.- and
making ready for use was $80. The labor of handling those exna
forms on the building and off the building cost $2.50 a thousand
each way. That would make $5 a thousand on 50,000 feet of lum¬
ber. That total would be $250. The extra labor for horses and
frames and covering plants, those were used to form a frame-work
to put the canvas on on top of the new work—2,000 feet «d $20 a
thousand, worth $40. I have not included anything in there for
nails in making those doors and quite a number of items which I
have not thought of.
Q. You figure up the whole thing as being $1954? A. Nineteen
hundred and fifty-four dollars that has occurred to me.
Q. Why was it that you only claimed $1350 in your cross bill on
that account? A. At that time it was pretty hastily done. Thcie
were quite a number of those items that I did not think of in getting
TRUSSED CONCRETE STEEL COMPANY.
67
at my costs. For instance, T did not think of the labor in handling
the material on and off the building. That is one of the items that
did not occur to me at the time T made that account.
Q. Now what other item of damages did you sustain by
133 reason of this delay? A. There is one other item that I did
not put in my cross hill that I did not think of at the time.
and that was the cost of heating the concrete material on the ground
before we made it.
Mr. Siddons: Of course I object to the testimony of the witness
as to alleged damages or costs not claimed in the bill.
Q. You have put in here the cost of coal for heating, and cost of
stovevS, canvas and straw? A. Yes sir, that is the heating of gravel
and sand. I overlooked that at the time. That was off the building
before we made the concrete, for heating the water to make the
concrete.
Q. You have one item here for coal for heating, $35. What was
that for? A. That was used in the stoves and in the wheelbarrows
to prevent the concrete from freezing after it was put in place.
Q. IIow did you get the item $35? A. I think that we used
eight tons of coal and some wood.
Q. I low much is coal worth, or was it worth a ton? A. Four
dollars a ton we paid for that.
Q. These items for stoves, canvas and straw, what does that in¬
clude? A. That includes two stoves; I bought two large second¬
hand stoves and paid $6 each for them. For the canvas I paid $28,
and the straw, I think, was $14.
134 Q. How did you get those stoves up into the building? A.
We hoisted them up on a hoisting plant.
(J. How long did you use this hoisting plant? A. We used it
until the building was put under roof; until the roof was on.
Q That was about the 20th of January? A. Yes sir; we took
it out just about that time.
Q. What sort of a plant did that consist of? A. That consisted
of a hoisting engine that I bought for this particular job and a 30-
horse power boiler. Did you ask me about the hoisting plant only,
or the concrete mixer?
Q. Take both of them. A. In connection with that hoisting
plant we had a concrete mixer wihch was run from this same boiler
that supplied steam for the hoisting engine, and in addition to the
engine we had the double cage that would carry a wheelbarrow
loaded—you run one wheelbarrow on, and as you run that up the
other cage would come down.
Q. If you had completed the work by the 15th of November
would you have had further occasion for the hoisting engine? A.
Not on that building. I had use for it if I could have taken it off
of that building.
Q. Rut could you use it on this other work during the period
from November 15 to January 25th? A. I had to use it.
Q. I am talking of the other work you say you could have
135 used it on? A. No sir; there was another job that I had a
chance to run it on.
68
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. What was the value of that hoisting concrete plant per day
during this |»eriod of 70 days? A. I was offered nine dollars a day
for it. It is worth $9.00 a day.
Mr. Siddoxs: The question and answer are objected to, and I
shall move to strike them out as not the proper method of fixing
the value of the plant as a measure of damage against the Trussed
Concrete Steel Company.
Q. What makes you estimate that it is worth $9.00 a day? A.
I paid $9.00 a day for a plant that was not as good as that, and I
have had occasion to hire one. I was offered $9.00 a day for this
one.
Q. Did that include the use of the engineer? A. Yes, sir, and
the coal.
Mr. Siddoxs: The foregoing question and answer are also ob¬
jected to for the same reason.
Q. What did you pay your concrete workmen per day? A. The
foreman I paid $4.00 a day.
Q. What did you pay the other workmen? A. Most of them got
$1.50 a day and some of them got more than that.
Q. How did you compute the sum of $3(30.00 as being the loss
sustained bv you bv the loss of time of the workmen bv reason of
the early closing of the concrete work daily. A. I took the
13(3 labor cost of putting in the concrete on the 8th and 9th
floors and the roof, and deducted 25%; took 25% of that
cost as being the loss of time of those men on account of the freezing
weather.
Q. You have a separate item here of payments to the foreman of
concrete, seventy days at $4.00 per day. Was that included in your
item of $3(30.00? A. No sir.
Q. So that in computing your loss, which you estimated at
$300.00, you did not take into consideration the payment to that
foreman of concrete? A. No sir, his time was not included in that.
Q. You also have an item of your own time, 70 days at $5.00 per
day; Why do you think that that was a loss that you sustained?
A. Because I had to spend so much time on the building that I
could have used to profit of good deal more than that if I could
have gotten the building finished at the proper time and had not been
delaved.
V
Mr. Siddoxs: The above question and answer are objected to as
not being the proper mode of proving this particular item of dam¬
age. ami as incompetent and inadmissible for any such purpose.
Did you have a foreman of carpenters on that building? A.
I did.
Q. IIow long did you keep him? A. Well, he was there for some
time after the building was under roof. His time was about
137 half—T figured half—consumed in this 70 or 80 days’ delay
that was caused by the delay of the steel. I figured that
half of his time could not have been used profitably during that
TRUSSED CONCRETE STEEL COMPANY.
69
extra time; the other half he was doing useful work around the
building.
Mr. Siddons: I make the same objection to this testimony regard¬
ing the foreman of carpenters, to both the question and answer as
to the testimony with regard to Mr. Karrick’s time claimed.
Q. You have spoken of concrete work on the 8th and 9th floors
ns having frozen during this period. Was any other portion of the
work beside the concrete damaged or frozen? A. Yes sir.
Q. What was that? A. The mortar in the brick walls.
Mr. Siddons: The question and answer are objected to as not
within the claim of the witness in his cross bill.
Q. Where was that mortar which you say was damaged or frozen?
A. Tn the east and west walls of the building, and the front wall.
Mr. Siddons: It is understood that my objection goes to all these
questions.
Mr. Clepiiane: Certainlv.
Q. Taking first the east and west walls, have you any signs on
that building? A. Yes sir.
188 Q. Where are those signs? A. They are on the east and
west walls; they are large signs painted on the brick, cover¬
ing the brick and the mortar joints between the bricks.
Q. Was any portion of the mortar in those signs frozen? A. Yes
sir, and fallen out.
Q. Will you state just what the effect the freezing was upon that
mortar? A. It caused the mortar to fall out of the joints on all the
brick work from the top down at least 20 or 24 feet from the top,
on both the east and west walls. The same thing occured in the
front wall. I omitted to put in that claim for damage on the
front wall in my cross bill because that was an item that T overlooked.
I spent a good deal of money having those joints pointed up on the
front.
Q. Ts it necessary to replace that mortar? A. Yes sir. to make
a reasonably good job of it, it is.
Q. IT as the falling out of the mortar had any effect on the appear¬
ance of the signs? A. Yes sir, it has not exactly destroyed the
signs but it has damaged them so that the signs should have been
repainted before now. T did not do it because of this suit pending.
Within a very short time after the signs were painted the mortar
fell out leaving streaks; in the joints where the mortar fell out it
threw the paint off and left streaks all through the signs.
189 Q. You have put in an item here of deterioration of the
signs on the we4 and east walls of the building due to the
freezing of the mortar joints, $75.00. What will it cost you to
replace the mortar and to replace those signs? A. Well, it cost
about $250.00 alone to put the signs on there, and it will cost that
much to replace the signs. The mortar joints are damaged over a
larger area than the signs cover.
Q. TTow large an area? A. Well, I figure 20 feet in height by
200 feet in length on the east and west walls, and then there was
70
FIDELITY STORAGE CORPORATION ET AL. VS.
some damage done on the interior of the building. I think that
made a total of about 8,800 sq. feet surface that must be gone over,
the loose mortar raked out of those joints and fresh mortar put
back in the joints.
Q. What will it cost to do that? A. It will cost all of ten cents
a square foot to do that.
Q. You have only charged $75.00 for the deterioration in the
signs. I believe you said it would cost $250,000 to do that work?
A. Well, I felt that I got some benefit out of the signs even
if they were damaged; I did not think it was fair to charge the
entire cost. I may l>e wrong about that. Maybe I ought to have
charged the entire cost of those signs.
Q. Do you know what it will cost to cut out and resurface the
parts of the 8th and 0th floors which have been damaged by freez¬
ing? A. Yes.
140 Q. Will it be necessary to do that work? A. Yes sir.
Q. Why? A. Recall sc the floors are very imperfect; they
are left in a rough condition, and not only rough but the base is what
is exposed to the wear, and that base is not made of as rich mortar as
we make the wearing surface of the floor. Tt is the wearing surface
that sealed off on account of freezing. Tf it is left the way it is the
floor would not only be rough but subject to great wear on account
of its not being hard enough.
Q. What wilt it cost to replace that and cut out and resurface?
A. T estimate that T could put that in. pick up the old surface and
put down a new coating—T estimated that at 70 cents a square yard.
I have not been able to get an estimate from any contractor to do
it as low as that. I did this on mv own estimate, which is less
than I have been able to get from any responsible contractor. The
best estimate was a dollar a yard for doing that same work, and
this man would not guarantee that it would stiek. He will use his
best efforts to make it stick but would not guarantee it at any price.
Q. How many yards of resurfacing would have to be done? A. I
do not remember the exact number but I can give you the size of
the floors and figure it out. On the 8th floor there was a place 100 x
00 that was damaged and the top scaled off. On the 0th
141 floor there was a place 150 x 60. That made something like
sixteen hundred and some odd square yards; I have for¬
gotten exactly now.
Q. Never mini] the exact number. You said it would be about
70 cents a square yard. A. Yes sir; that was my estimate on it.
I was a good deal lower than other contractors.
Q. Now Mr. Magrini has testified in this case with regard to the
stucco work on the front of the building, and has stated that there
were bats used in that stucco work. Is that correct? A. That was
absolutely false, and impossible.
Q. Why is it impossible? A. The stucco is about % of an inch
thick. It is made out of cement and sand, and lime water; we use
lime water to make this stucco as white as possible. There was no
possibility of a broken brick or bat or anything of that kind being
used in the stucco.
TRUSSED CONCRETE STEEL COMPANY.
71
Q. Was any of that stucco work damaged by freezing? A. Yes
sir.
Q. To what extent? A. A good deal more than I put in my
claim. Another item that I overlooked was that we took down
quite a lot of stucco and replaced it. That item I overlooked when
I put in my cross bill, but some portions that we did not take down
have scaled off on account of freezing and fallen, near the top of
the building. There is some of that cracked and in danger of
falling and it ought to be removed and replaced.
142 Q. How much will it cost to remove and replace that?
A. v could not do it for less than $75.00. I have not been
able to get anybody to make an estimate on that. It is a difficult
job to do. It has all to be done from a swing stage, and in a some¬
what dangerous position, and it is difficult to get men to work on
these stages.
Q. Mr. M agrini has also said that this building was built very
largely of second hand material. State the facts in that regard?
A. I used a good many second band brick in the building; in fact,
all the second hand brick 1 could get, except on the outside wall.
The four inches on the outside are built with new brick but all the
rest of the building was built with old brick as far as I could buy
old brick. On two or three of the top stories I used new brick
because I could not buy any more second hand brick.
Q. Is that a proper method of constructing a building of this
character? A. It is; there i.s nobody who could tell today that they
were second hand brick after the walls were whitewashed on the
inside. The second hand brick were a good deal better than the
new brick that I bought.
Q. Why? A. One reason is that if you tear down a building
if there arc any soft or poor brick in it they break up and in
tearing down you only have the good brick preserved. And then
a great many of those were hand made brick; in fact I think
143 nearly all were hand made brick; and those arc tougher and
stronger brick than the modern machine made brick. That
was all the second hand material that was used in the building.
Q. Was the building inspected by the Building Inspector during
its progress? A. Nearly every day the Inspector was on the build¬
ing.
Q. Was it approved by him? A. It was.
Q. When the material actually arrived—I am not speaking now
of the material that arrived before it was ordered—but when the
material arrived in other respects for other floors, were you always
ready to put it immediately into the building? A. In every case we
were waiting for it. We were waiting before the steel got there.
Q. When the freight cars arrived in Washington and you were
notified by the Trussed Concrete Co., how long was it before the cars
were unloaded? A. In every instance but one, we unloaded the
cars the same day that we got the notice.
Q. Why in that one instance were the cars not unloaded? A.
In that instance the railroad company failed to put the car under
the crane. They were unloaded. The steel came in bundles wired
72
FIDELITY STORAGE CORPORATION ET AL. V8.
together and it was easier to unload it under a crane where the crane
could lift the bundle up and put it on a wagon. It was easier
144 to unload it that way.
Q. How much lumber did vou use in the construction of
that building? A. We used something like 150,000 feet of lumber
in making those forms, but in the construction of the building itself
there is not a piece of wood excepting three little doors in the office
and the top of the counter. Even the sides of the counter are fire
proof.
Q. I believe you have already stated that the appliance- that you
had on hand for the work were proper and sufficient. Do you know
whether Mr. Layton V. Smith ever saw any of the appliance- which
you had? A. Yes sir, I consulted with him before I bought any of
those appliances. They were approved by him; in fact, he recom¬
mended this concrete mixer himself. We both went to look at a
similar concrete mixer which was on exhibition here during—I
think it was called the Railway Appliance Fair, or something of that
kind; it was a fair down on the Agriculture Dept, grounds, and there
was a concrete mixer on exhibition there. Mr. Smith was there at
that fair exhibiting the Trussed Concrete Steel products, and he
called mv attention to this concrete mixer and recommended it verv
• •
highly, and on his recommendation and my own judgment, I
bought it.
Q. Did you ever have any conversation with Mr. Smith regarding
the use of broken bricks in the building? A. About using broken
bricks in the concrete?
Q. Yes. A. Yes sir.
145 Q. What did he say about that? A. He said that if Mr.
Kahn recommended it he would endorse what Mr. Kahn rec¬
ommended.
Q. Did you ever have a conference with Mr. Kahn? A. I did.
Q. What Mr. Kahn was that? A. That is the patentee of this
steel that was used in the building. They called it the Kahn system
of reinforced concrete.
Q. Do you recall Mr. Kahn’s full name? A. No sir, I do not.
It used to appear on the letter heads.
Q. Will you look at this letter and state if you know by whom it
i.- signed? (referring to the letter from the Trussed Concrete Steel
Company to .Tames L. Karriek, from Pittsburg, Penn., dated Nov.
11th. 1005, and offered in evidence.) A. T think his name was
Louis Kahn but T would not be sure. This man that I talked with
was the head of the concern and the patentee of the steel.
Q. Was it the man who was in charge of the Pittsburg office? A»
No.
Q. It was not the same Mr. Kahn who signed that letter then?
A. T do not. know about that: he might have been there when that
letter was sent. I do not know whether it w T a« the same man or
not.
Q. What did Mr. Kahn say about the use of broken brick?
140 A. He recommended it very highly and told me to use all
the broken brick I could get if they were hard brick.
TRUSSED CONCRETE STEEL COMPANY. 73
Q. Was any old mortar used in the construction of that building?
A. Not a particle.
Q. Was the broken brick which you used hard brick? A. Yes
• •
sir.
Q. Mr. Karrick, have you been in the construction business long
enough to he able to judge of the competency of workmen? A.
Yes sir.
Q. Wore the laborers which you employed on the building com¬
petent for the work? A. They were; if they were not we discharged
them and got other men.
Q. Mr. Magrini, who testified for the complainant in the original
hill, spoke of a crack in the building; he seemed to lay some stress
on that. Do you recall anything about it? A. There is a trifling
crack on the first floor caused bv the. settling of these temporary
forms, but it was so slight that we had several discussions about that
crack, and decided to ignore it. *We afterwards tested that beam
by piling brick on it, and it went through the test required by the
District Building Inspector and it was found to be all right.
Q. Did von have any conference with Mr. Layton F. Smith
147 regarding that crack? A. Yes sir.
Q. What was that conference? A. T cannot remember
the words but he thought it was too trifling a matter to consider. It
was a very trifling thing. I do not believe that Magrini remembers
when there is such a crack in the building.
Q. Would you sav that it is competent to use with propriety and
safety second hand material such as you used in this building? A.
Absolutely so.
Q, Who is this man Magrini? A. He was the foreman of con¬
crete laborers for part of the building. He was not foreman all the
time.
Q. Under what circumstances did he leave your employment? A.
I discharged him twice for drinking. I discharged him once in the
summer and he came back at the end of about a week and said that
he would not drink any more and I re-employed him under his
promise that he would not drink any while he was on the job.
Q. What else have you to say about Magrini? A. I have told you
.about discharging him in the summer and taking him back again
under his promise that he would not drink. He apparently did not
drink any to excess for sometime, but finally began to show signs of
drinking again, and I warned him several times that I could not
have this drinking, and finally just before Christmas, one Sun-
148 day. I discharged him. He was drinking on the job and I
was afraid he would fall off the building and kill himself.
Tt was when we were on I think the 9th floor, or just beginning the
9th floor.
Q. Magrini testified that he was not discharged, but that he re¬
signed. What do you say as to the accuracy of that statement?
A. I discharged him in the presence of four or five men who heard
me tell him to go off the building.
Mr. Clephane: Mr. Siddons, T find that T shall have to ask Mr.
Karrick, two or three more questions, but I shall have to look at some
74
FIDELITY storage corporation et al. vs.
books before doing so, and I wool 1 like to withdraw him at this
point and recall him later.
Mr. Sidpons: Verv well.
Mr. Karrick was thereupon excused.
Gilbert S. Clark, a witness produced for and on behalf of the
defendant, having been first duly sworn testified as follows:
Bv Mr. Clephane:
Q. Mr. Clark, will you please state vour residence? A. 1412
Chapin Street, Washington, D. C.
Q. How long have you resided here? A. Seven years.
O. What is vour business? A. At the present time T am a steam
fitter.
Q. Engaged where, what establishment? A. For myself.
140 Q. Have you ever had any business relations with Mr. Kar¬
rick, one of the defendants in this cause? A. 1 was employed
by Mr. Karrick about five years.
Q. In what capacity? A. Well, in various capacities; superin¬
tending construction work, receiving material, and etc.
Q. During what period of time? A. 1 started in with him in
1001, and was engaged up to a couple of years ago.
Q. TIow long had you been in the business of construction prior
to the time you were employed by Mr. Karrick? A. I never was
until I started in with him in building.
Q. What experience have you had along this general line before?
A. Well, I cannot say that 1 know how to answer that question, as
bearing on this kind of work. I have put up wind mills for a great
many years, and steel and wood towers, and at that time 1 was con¬
nected more in the machine business.
Q. Do you know when the Fidelity Storage Corporation building
at 1420 t T Street was completed? A. The roof was put on the
latter part of January, 1000.
Q. When was the building completed after that, if you know?
A. I can hardlv sav. After the roof was on we started to
• ' c-
150 put up the partitions and I worked on the work there until
the spring, sometime late in the spring—I could not tell
exactly the time—putting up partitions, doors and elevators.
Q. TIow large a force of men was employed on that building?' A.
I was time keeper at first and we had during my time on the books,
as high as SO men. T lielieve. I think that was the highest that T
can recall.
Q. How large a building is this? A. It is 00 x 200 feet.
Q. How many stories in height is it? A. Nine stories.
Q. Wa« there any period during the course of its construction
when there were not enough men on hand to properly handle the
work? A. No sir.
Q. Do you recall when the weather commenced to freeze, during
the winter of 1005-0? A. 1 do not /(‘call that I could just shite. It
wa< in November, but l could not tell the dates because I did not
keep particular account of that.
TRUSSED CONCRETE STEEL COMPANY.
75
Q. Do you know whether the weather was cold enough to have
had any effect on the concrete or mortar of that building? A. Yes
sir.
Q. What was the effect in regard to that? A. Well, the
151 first real effect it had to show, was on the south half of the
eighth floor where it scaled off from quarter to half an inch
deep from the frost. If a man wanted to go up there he would
find it heaved up there with ice?
Q. Was that condition apparent on any other floor? A. No sir,
it did not show up on any other floor.
Q. Why not? A. We got that in before the freeze commenced
to effect us much.
Q. What was done there in the way of avoiding the freezing of
the concrete; what was done to keep it from freezing? A. We got
two good large stoves that would hold 100 pounds of coal at least,
or more, and when it got colder we had those steel wheelbarrows
and built a fire in them; they would take a bushel or a bushel and
a half of coal at a charge and we would keep adding to it, and then
jit times we made a sand pile, and built a fire on the floor. I do not
know whether I can refer to Mr. Karrick’s evidence or not; I do not
know whether he made it quite plain. The canvas that he had
reference to was on the floor underneath the new floors that were
just going up, and this fire was at that point. It was to keep the
air from coming in underneath.
Q. The fire was on the floor underneath where the work of con¬
struction was going on? A. As the work progressed, yes sir,
152 under the floor we were working on, the new floor.
Q. What was put over the floor which was being con¬
structed, if anything? A. I will use a different term; instead of
horses we used trestles; the carpenters called them trestles. They
were made long, 16 or 18 feet, and we laid lumber over that plank
and then stretched our canvas as tight as we could, close to the
joints, and laid timber over that to keep the air from opening up the
laps.
Q. So that the canvas was laid over the fresh work which was being
laid—the fresh concrete? A. Yes sir, from about 20 inches to two
feet.
Q. Was any straw used there? A. Yes sir.
Q. In what way? A. We would get several bales of straw and
spread that down over the top of the concrete. As there was no wood
in it the straw would bed itself in the concrete.
Q. About what time during the day would the men who were
engaged in hiving that concrete have to go to work to put those
stoves, trestles, straw and canvas in place? A. Well, in cold weather
sometimes half past three or four o’clock. I have known a time
when it was earlier than that. In the middle of the afternoon we
would have to stop making concrete to get ready to take care of
it that night.
Q. When the men came the next morning how long would it
take them to remove all this stuff, in order to commence lay-
158 ing concrete? A. It would take an hour or an hour and a
half.
76
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. How were those fires kept during the night? A. By a watch¬
man.
Q. Do you know whether he was there every night? A. Well, I
wa* not there every night myself, but I was back and forward. In
extreme weather 1 would go back and forward to look after it to see
that it was taken eare of but I was not employed particularly, I only
had an interest in the building. I always found the fires in good
condition. I was there always in the morning one of the first men
on the job and always found the fires in good condition.
Q. You say that the concrete work froze. What was the effect
that was noticeable upon the floors? A. The top would heave up
from the base, what we called the topping.
Q. Do you know how that can l>e repaired? A. The only way
it can be repaired is by cutting out deeper and putting on heavier
bed in another topping.
Q. Do you know whether that will stick when it is put on? A.
Well, I do not know, it does not in all cases. I am not a concrete
worker myself, exactly. I have had quite a little experience on this
job, but 1 know I have seen other work, repair work, where we had
trouble to get the concrete to stick to the old concrete.
Q. How much of the 8th and 9th floors, if you recall, were
154 damaged in that way by freezing? A. Three fourths at least
of the top floor, the 9th floor, and about 100 feet, or half, of
the 8th floor.
Q. Was any of the mortar damaged, if you know, by freezing?
A. Yes sir.
Q. Where? A. Well, I think two floors, either .the 8th and 9th
floors, on the east and west walls.
Q. What part of the east and west walls? A. What they call
jointing is frozen loose and scaling out.
Q. Is any portion of that covered by the signs? A. Yes sir, the
big signs on both sides.
Q. How can the damage which is done to the mortar by freezing,
l>e repaired? A. Well, the only way that I know would be to cut
the mortar out, that is what is loose, and point it over again.
Q. Did you observe whether the weather had had any effect on
the stucco? A. Yes sir.
Q. Where is that stucco? A. The stucco is in the north end.
Q. What was the effect of the weather upon that? A. It had froze
and scaled off. We covered that with canvas but could not get a
fire to it to take eare of it.
Q. Do you remember whether or not there was any hoist-
155 ing concrete plant there? A. Yes sir.
Q. Where was that located? A. That was located in the
eastern side of the building.
Q. How long was that there? A. I do not know; we started in
June sometime, I think.
Q. Was the concrete hoisting plant there at that time? A. I
could not say the date; I put it up but I did not keep a record of
the davs.
«
Q. Was it there during the summer of 1905? A. Yes sir, it was
there during the summer and winter.
TRUS9ED CONCRETE STEEL COMPANY. 77
Q. When was that taken away? A. We tore it down the last of
January, 1906.
Q. Was the building under roof at that time? A. Yes sir, we
could not use it after the building was finished, after the roof was
on.
Q. Do you know anything about the amount which has to be
paid for the use of the hoisting concrete plants? A It was about
$9.00 to $10.00 per day.
Q. What knowledge have you on that subject? A. Well, I do
not know much about it from my own actual experience. I have
handled the machines for two years.
Q. Do you know what is ordinarily paid for those ma-
156 chines. A. That is what I understand they pay for a
machine of that kind.
Q. Do you know whether Mr. Karrick had a sufficient force of
workmen there and a sufficient equipment, to complete that building
bv the loth of November, if he had had the steel to do it with? A.
Well, as the work progressed, when we had the material, the steel,
it went on; that is the only thing that I know of that retarded our
work. I think we could have easily done it at that time.
Q. When the material came was Mr. Karrick always ready for it?
A. Yes sir, on all occasions except one floor.
Q. Was any lumber used in the construction of the building? A.
There was no lumber except for superstructure.
Q. What do you mean by superstructure? A. The forms that
we put up to build /?!g the concrete on.
Q. Do you know whether Mr. Karrick obtained any extra forms
after the building started? A. Yes sir.
Q. What do you know about that? A. I know we had to build
a half floor.
Q. Why? A. The weather got cold and we did not dare to take
the forms out below in time to put them to this use.
Q. How long would the forms be in place before they
157 were taken out, ordinarily? A. Well, we aimed to keep them
there from ten davs to two weeks.
__ a/
Q. After the freezing weather set in did they have to stay in
place longer? A. Yes sir, they had to leave them in there three
weeks at least.
Q. Referring again to this stucco work, where did you say that
stucco work was? A. On the north front.
Q. How thick is that stucco work? A. From one half an inch
to three quarters of an inch.
Q. Is it possible to get broken bricks in it? A. No sir.
Q. Do you know anything about the use of second hand material
in that building? A. The only second hand material that is in
the construction of the work is the brick.
Q. What kind of second hand bricks were put into that work?
A. They were good brick.
Q. Was there any damage done to the building by the use of
that second hand brick? A. No sir.
78
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. W as it possible to use second hand brick with just as much
safety and propriety as new brick? A. Yes sir.
158 Q. I believe you stated the number of men who at one
time were at work on that building. Do you know whether
those men were competent or not? A. Yes sir, we discharged them
if they were not competent.
Q. In speaking about discharging, do you know a man name-
Magrini, who was employed on that building at any time? A. I
knew him at that time.
Q. Who was he? A. He was a foreman of concrete work.
Q. Do you know when he was employed there? A. I could not
give the date.
Q. Do you know when he left? A. He left just before the holi-
davs, before Christmas.
Q. Under what circumstances did he leave? A. On account of
drunkenness. Mr. Karrick discharged him.
Q. l)o you know that? A. Yes sir.
Cross-examination.
By Mr. Siddons:
Q. How do you know it, Mr. Clark; how do you know that he
was discharged for drunkenness? A. I was on the building.
159 Q. At the time he was discharged for drunkenness? A.
Yes sir.
Q. What part of the building was he on at the time Mr. Karrick
ordered him oil? A. Do you mean what floor?
•/
A. Yes, what part of the building? A. It was on the floor that
they were laying at that time.
Q. What floor was that? A. I do not remember now; it was
the 8th or 9th floor—the ninth floor I think.
Q. You think it was the 9th floor. What was he doing at the
time Mr. Karrick ordered him off? A. He was trying to super¬
intend the laying of concrete.
Q. IIow many workmen were there on that floor at the same
time besides yourself—and Mr. Karrick was there, I assume. Who
else was there? A. There were a number of laborers there.
(J. Can you give me the names of any of them? A. I was not
time keeper at that time and did not keep a record of the number cr'
men they had.
Q. I do not care for the number of men but tell me the names
of some of them. A. 1 have not Wen in contact with them for
three years.
Q. Then you do not remember? A. There were quite a number
of Italians ami it will be impossible for — to give you their names.
We knew them as Frank and John and Tom; that was all.
160 There were two or three colored men that I recall, John
Robinson, Will Joyce and Mose Jackson.
Q. They were on the floor at the time Mr. Karrick ordered Ma¬
grini off and discharged him, were they? A. Robinson and Jackson
were working on the top of the building, but where they were at
that time I could not tell. Jackson took a wheelbarrow off the cage,
TRUSSED CONCRETE STEEL COMPANY. 79
shoved it just off the cage. Now whether he would be close enough
just at this time 1 could not tell.
Q. Now, Mr. Clark, exactly what were your duties at that place,
beginning with your first employment on the construction of this
warehouse. W hat was vour work? A. When I first started in 1
helped to make the forms for the carpenters.
Q, Forms for this steel construction? A. To build the concrete
on, yes sir.
Q, For the reinforced steel construction work, you helped tc
build the forms? A. I helj>ed to make those doors, as Mr. Karrick
calls them, and the boxes for the beams.
Q. W hen was that? A. In May.
Q. It was in May, 100”), that those doors were constructed that
Mr. Karrick referred to in his testimony, and those beams that he
spoke of? A. Yes sir.
Q. You were not a carpenter, were you? A. Only a saw
161 and hatchet carpenter. 1 am not a regular carpenter.
Q. I understood you to say that your trade was that of
steamfitter? A. I took steamfitting up; I had worked at it some be¬
fore I came here seven years ago, and I have taken it up along with
my other line of work.
Q. Do you hold yourself out as a steamfitter, or what is your
trade? A. At the present time, yes sir.
Q. I mean at the time we are speaking of. A. At that time I was
employed by Mr. Karrick to look after his building, receive his ma¬
terial and look after the time of the men.
Q. And you also did some carpentering work in the construction
of these forms? A. That was before we had many men on the
work. After we commenced the erection of the building I did not
have time to attend to the carpentering work.
Q. But when you first went there Mr. Karrick put you to work
in constructing those forms for reinforced steel construction; that
is correct, is it? A. Yes sir.
Q. And at the same time you were keeping the time of the other
men employed by Mr. Karrick? A. At that time he only had a few
men working there.
Q. I low many did ho have at that time? A. There were a
162 couple of carpenters and myself, and when they commenced
to put the other men to work excavating, etc., I stopped car¬
pentering.
Q. So that the first work you did upon this building in May,
1905, was carpentering work in the construction? A. I guess you
might call it carpenter’s helper, because I am not a carpenter.
Q. Well you are testifying, and I am trying to find out what your
w'ork was? You were helping at the carpentering work, were you?
A. Yes sir, sawing doors, and nailing frames together.
Q. For what floor were those forms being prepared by you? A.
They were used for all floors. We took them from one and when
this floor got strong enough we would take them down and put them
on the other.
Q. Who supervised that carpenter’s work that you were engaged
80
FIDELITY STORAGE CORPORATION ET AL. VS.
on with those other carpenters that you mention at the time; who
directed the work? A. I cannot remember the foreman’s name. His
first name was Frank, but I do not remember his other name.
. Q. He would instruct you? A. He was the foreman of carpenters
at that time.
Q. And he would instruct you in the work that you were doing as
helper to the carpenters? A. Yes sir, at that time.
Q. And your recollection is that there were two carpenters
163 there when you began besides yourself as helper? A. Yes sir.
Q. Did that include the foreman of carpenters? A. There
were only three of us.
Q. Three all told, including the foreman of carpenters? A. Yes
sir.
Q. Now when did the number of carpenters increase, and to what
number did they increase? A. Well, it was later we got the first side
walls up. I do not know just how long it took to do that.
Q. How many additional carpenters were employed? A. I could
not just give you the exact number of carpenters.
Q. Well, approximately. A. I could hardly tell you.
Q. Did you keep their time? A. I kept the time at that time, yes
sir.
O. Have vou vour time books that would enable you to tell how
many carpenters there were on the job? A. I have not the time book
myself.
Q. Do you know where it is? A. Mr. Karrick has it in his pos¬
session.
Q. When you stopped this carpentering work what next did you
turn your attention to beside the keeping of the time of the
164 men? A. I received material, checked that off and helped at
the elevator and ran the hoisting engine part of the time and
looked after the workmen to see that they were up to their work.
Q. You looked after them in what way? A. As a sort of general
foreman in Mr. Karrick’s business. 1 was looking after his business
as a whole.
Q. Then did you undertake to direct the work of the carpenters,
for instance, in Mr. Karrick’s absence? A. No sir.
Q. Did you undertake to direct the work of putting in the rein¬
forced steel there? A. No sir.
Q. Did you undertake to direct the bricklayers? A. No sir.
Q. What did you do in Mr. Karrick’s absence? A. Well, the only
thing that I had charge of directing would be the laborers, to see
that they were not shirking their duty and kept the material as far
as possible up to the workmen, the mechanics, you understand?
Q. Did that include the men who were employed, the laborers
who were employed, on the steel construction work too? A. It in¬
cluded all other labor.
Q. And you were jack them up if they appeared to be neglecting
their duty? A. Yes sir.
Q. You say you also received the material for Mr. Karrick; where
did you receive it? A. On the yard there, around the build-
165 ing.
Q. Did you ever receive any steel material? A. In check¬
ing up there—in checking it up, yes sir.
TRUSSED CONCRETE STEEL COMPANY. 81
Q. Who would bring it there? A. A man named Baldwin hauled
most of it.
Q. Any one else? A. The Anderson Dray age, I think, hauled
some.
Q. Who hauled first, Anderson or Baldwin? A. I think Mr.
Baldwin hauled the first lot of steel.
Q. Did Anderson continue to haul it until the end? A. No; I
think just one shipment, if I recall aright.
Q. Who? A. Anderson, I think hauled one shipment, just one
floor.
Q. Do you remember which floor? A. That 1 could not tell.
Q. Did Baldwin haul the rest? A. lie hauled the rest.
Q. You did not go down to the steam cars to see if the steel was
there, did you? A. No sir, I never was there at all.
Q. Did Sir. Karrick, himself, or anyone representing him, make
it a practice to go down to the railroad cars when he received notice?
A. Mr. Baldwin looked after that.
100 Q. That was the drayage man? A. He was a teamster.
Q. He did the hauling, did he? A. He did the hauling.
Q. He would unload the steel, as you understood it, from the
cars, and bring it up to the building and there you received it? A.
Yes sir.
Q. And receipted for it? A. Yes sir, 1 receipted for it.
Q. Did you have a hand in any other part of the work except as
you have now described; did you do anything else besides what
you have stated? A. 1 superintended the division of the elevator
steel a< the stories went up, added to the hoisting machinery.
Q. How do you mean, you superintended the construction? A.
Yes sir.
Q. Who put the elevator in? A. We made it ourselves.
Q. Did you make it? A. I helped to make it.
Q. Who assisted you? A. The boss carj>enter.
Q. Just what kind of an elevator was it? A. The frame of it was
wood; it was what we called a double caged elevator, one went up
and the other down.
1 (>7 0. It was to haul material, was it? A. Yes sir.
Q. Were you on the building from the time the construc¬
tion of it was commenced until it was completed? A. I was on it
not until the final completion because after we got so we could do
business then I put some partitions in after that.
Q. What do you mean by after you could do business? A. After
we commenced to receive goods. I was on up until we receive- goods.
Q. Until goods were put on storage there? A. Yes sir, but there
were parts of floors that we did not wait to finish, and that he did
between times just as they had time to do it. Of course I was not
on that portion of it.
Q. W lien you finished, however, Mr. Karrick, or the company
had begun to receive goods on storage in the building? A. Yes sir.
Q. And that was in the spring or summer of 1906? Can you
state about when it was? A. I could not tell just what date. It was
in the spring of 1906.
6—2057a
82
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. During (lie period of construction did you have any strikes
on the building? A. Nothing to amount to anything.
168 Q. Well, did you have any at all, whether they amounted
to anything or not? A. I cannot recall that there were any
strikes outside. Just after the first few days the bricklayers com¬
menced to strike there for wages. That was the only strike I recall.
Q. That was just a few days after- A. Just afterwards; in
fact there was no portion of the walls up—the half story.
Q. And the bricklayers struck? A. Yes sir.
Q. Did the same ones come hack or did Mr. Karrick get new
bricklayers? A. The first time they demanded wages there were
only a few working then, or just getting ready to work. Some only
worked a few hours, and Mr. Karrick acceded to their demand. I
do not know what the particulars were because they went to him, but
thev did not work verv manv da vs then. They had from 12 to 15
4 / * 4 ' %J
bricklayers then, and thev made another demand. Then Mr. Kar-
%> * •
rick laid them off and discharged them and annulled his contract
with them, and hired other men entirely.
Q. Hired them himself, or do you know whether he had a con¬
tract with any other bricklayers? A. That I do not know.
4* 4'
Q. Did you have supervision of those men? A. Not more than
keeping their time.
Q. Who was the foreman of the brick men?
his name.
169 Q. M as there one after the strike? A
there in the crowd who had general supervision.
Q. He was selected as foreman? A. Yes sir.
Q. M ho selected him? A. Mr. Karrick, I guess.
Q. M’ere there anv other strikes? A. I do not remember any.
Q. None by any of the other mechanics that you know of during
the whole period of the time you were there? A. I do not recall
A. I cannot tell you
4 /
There was one man
any.
Q. Now Mr. Clark: M’hen did that freezing weather commence
that caused all this damage that you have spoken about? A. It
began in November but I could not tell just when.
Q. Do you remember about when in November; I do not ask
you to fix the date, but was it the beginning or the middle or the
end? A. 1 could not tell; that was four years ago, or three, and I
could not tell.
Q. How do you fix it in November at all, then? A. I know it
was the latter part of the fall or early winter.
Q, You simply fix it as being in the latter part of the fall or the
early part of the winter? A. Yes sir, it wintered up early on us.
Q. But you could not say anything more as to the date
170 when you first began to notice the freezing? A. No sir.
Q. When did you see the freezing first—I mean on what
floor? A. The <Sth floor.
Q. How far had they progressed with the work of setting this
reinforced steel on the 8th floor when you first observed the freez¬
ing? A. There was just half of it done, 100 feet.
Q. Can you tell us approximately about how long after you first
*
TRUSSED CONCRETE STEEL COMPANY. 83
saw the freezing on the Sth floor that they got to work on the 9th
floor? A. No, I could not tell.
Q. Do you know whether it was a month? A. I could not tell
because I did not keep a record of that at all. My duties took me
to another kind of work.
Q. Was not the matter of this freezing and the delay in the de¬
livering of the steel the subject matter of a great deal of talk between
you and Mr. Karrick? A. No sir.
Q. Did you not talk about it at all? A. Oh, well, as to what
time do you mean?
Q. At the time this freezing commenced, due as I understand it,
to the failure of this company to deliver the steel? A. The only
thing I can recall is the holding up of the work on account of cold
weather beginning.
171 Q. When did that begin? A. When the cold weather
commenced, 1 could not give you the date.
Q. Up to the time the cold weather commenced there had been
no delay in the delivery of the steel material, had there? A. Yes
sir.
Q. When—1 am asking you when it began? A. He kept worry¬
ing all the time there.
Q. Who do you mean by he? A. Mr. Karrick; you are speaking
of him, Mr. Karrick worried.
Q. I am not asking you about Mr. Karrick worrying. I am ask¬
ing you when, according to your own recollection, the delay in the
deliverv of the steel commenced? A. We had to wait on the second
«
floor.
Q, Mow long? A. I could not tell the date; I know we had to
lay some of the men off for a short time.
Q. What men were they? A. They were the laborers, and we had
to hold the bricklayers back too until the material came so that they
could go ahead.
Q. So that the first delay was in the second floor. W T hen was the
next delay? A. At that time they sent two floors together; they
sent two shipments. I think the 2nd and 3rd floors came at one
time, and after that I do not know whether — was any one
172 shipment that came on time when we were just ready for it.
Q. You would say generally then that every shipment was
delayed, beginning with the second floor? A. Well, there was one
shipment when they shipped two floors at one time.
Q. t understand that, the 2nd and 3rd floors. A. And we went
ahead with those two floors, and there may have been one floor
where the shipment came in just as we were ready for it.
Q. You do not remember just which that was? A. No sir, I did
not. charge my memory with those things because I had other things
to think about.
Q. So that when the steel material did not come on time, how
much of the work did you have to stop on—you stopped all brick¬
laying? A. We had to stop the bricklayers; they couldn’t go on
until we got the flooring.
Q. What other laborers? A. The brick laborers; we had no
84
FIDELITY STORAGE CORPORATION ET AL. VS.
use for them; if we did not have the bricklayers working, and we
found the material was not shipped. We laid some of the carpen¬
ters off; it held that work back, retarded it some.
Q. That went on all the way through the building, did it? A.
All the way through the building.
Q. Ilow much delay was there in the shipment of the 8th door?
A. I could not tell.
173 Q. ITow much delay was there in the delivery of the 9th
floor? A. I could not give you that because I did not charge
my memory with it. If this was not ready for us to go ahead with,
if the material was not there, we would go on with something else.
Q. You had something else to do if the material was not there,
yourself? A. I always had some other work to go at and I did not
give that anv thought at all.
Q. Can you tell how much delay there was in the shipment of
any material? A. I could not tell you anything about it.
Q. Within anywhere from two days to a week; can you tell me?
A. Xo, I could not tell positively.
Q. When did you last work for Mr. Karriek? A. I have been
working for him off and on ever since.
Q. Are you working for him now? A. Xo sir.
Q. You are on no job for him now, are you? A. Xo sir; I do
some fitting whenever he has any to do.
Q. Do you know what broken brick was used in that building for
any purpose; you said there was none used in the stucco and could
not be. I understood von? A. Xo sir, there could not be.
174 Q. Was there anv broken brick used in any of the material
that was mixed for use in the building? A. There was some
cracked brick used in some of the concrete.
Q. In the floors or walls or where? A. In some of the floors;
thev did not have it for verv manv of the floors. Thev did not have
• * •
much of it on hand. They could not get it.
Q. Do you remember which floors the broken brick was used on?
A. I could not tell. It would not be possible to find it in the floors
now, I do not think.
Redirect examination.
Bv Mr. Clephane:
Q. Just one question. You were speaking of the first set of forms
or two sets of forms with which Mr. Karriek proceeded to work,
having been made in May. 190o—I believe that is correct? A. I
think it was in May. It was May when we started to work.
Q. Do you recall when the last half set of forms that you speak
about were made? A. That was made in the fall. When the cold
weather commenced we could not take the forms down in time.
I could not give any dates because at that time I was not doing the
wood work.
TRUSSED CONCRETE STEEL COMPANY.
86
Recross-exanii nation.
Bv Mr. Siddons:
175 Q. Aon did not assist in making those forms, did you?
A. No sir.
Q. W ho made those, if you know? A. The carpenter had charge
of that.
Q How many carpenters were there working on this set that were
made in the fall? A. I could not tell; it was not under my juris¬
diction.
Q. You did not keep the time? A. No sir; I did not keep the
time very long.
It was mutually stipulated by and between counsel that the sig¬
nature of the witness to the foregoing deposition be waived.
Sworn to before me this 12" day of Dee. 1908.
ALEX. II. GALT, Examiner.
M ithout concluding the testimony for the defendant, an adjourn¬
ment was taken until Monday. Dec. 14th, 190,8, at 1 :30 o’clock P. M.
Washington, D. C., Dec. 14th, 1908.
Met pursuant to adjournment at the office of Walter C. Clephane,
Esq., Kendall Building, for the purpose of resuming the taking of
testimony in the above entitled cause.
170 Present: Frederick L. Siddons, Esq., solicitor for the com¬
plainant: and Walter C. Clephane, Esq., solicitor for the
defendant Karrick; and Allan O. Clephane, Esq., solicitor for the
defendant The Fidelity Storage Corporation, also the defendant
Karrick in person.
Percival II. Smyth, a witness produced for and on behalf of the
defendants, having been first duly sworn testified as follows:
By Mr. Clephane:
Q. Are you acquainted with Mr. James L. Karrick, one of the
defendants in this cause? A. Yes sir.
Q. In what way are you acquainted with him? A. I have been
in his employ for the last four years.
(}. Are you familiar with the storage warehouse of the Fidelity
Storage Corporation, which is located at 1420 U Street in this city?
A. Yes sir.
Q. What is vour business connection with that corporation, if
any? A. I am employed as book-keeper.
Q. Are you employed by Mr. Karrick or the corporation? A.
By the corporation.
Q. Mr. Smyth when did your employment with the corporation
commence? A. About the 15th of March, 1907.
177 Q. The 15th of March, 1907; last year? A. 1906.
Q. Was it before or after the storage warehouse was com¬
pleted? A. It was after the roof was put on.
86
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. You had no employment with the Fidelity Storage Corporation
l>efore the roof was put on? A. Xo sir; I was employed by Mr.
Karrick.
Q. When were you first employed by Mr. Karrick? A. About the
latter part of October.
Q. Of what year? A. 1905.
Q. Was the storage warehouse then under construction? A. Yes
sir.
Q. Who was constructing it? A. Mr. Karrick.
Q. Do you know when the roof was put on that building? A.
About the 25th of January, 1906.
Q. When was the building completed after that? A. Sometime
in the middle of May, 1906.
Q. Do you know how many men were employed in the construc¬
tion of that building? A. Xo sir, T do not know the exact number.
Q. Do you know what plant Mr. Karrick had for the purpose of
putting the building up, what appliances he had for the pur-
17<S pose of constructing the building? A. lie had a concrete
mixer, a hoisting machine and the necessary tools.
Q. How long was that concrete mixer and hoisting machine used
on the building? A. It was used until the building was completed.
Q. Do you know what the average price for the use of a concrete
plant and hoisting machine such as that one is? A. Xo sir.
Q. Do you know whether or not during any portion of the time
that building was under construction the weather had gotten down to
the freezing point or below? A. Yes sir.
Q. Do you mean that it had or had not? A. It had gotten below.
Q. About when did freezing weather set in, if you recollect? A.
In the early part of November, 1905.
Q. Do you know whether the freezing had any effect upon the
concrete work under construction? A. Yes sir.
Q. What effect did it have upon it? A. It had the effect of
freezing.
Q. What effect was noticeable as a result of the freezing? A. The
popping of the floors that peeled of-.
Q. Which floors if you recollect? A. The 8th and 9th floors.
179 (}. I low much of those floors peeled of-? A. Over half of
it.
Q. W hen you say they peeled off I wish you would explain in de¬
tail what you mean? A. The topping of the concrete floors is of
better quality than the base; it is richer; and in that peeling off of
course the under part scales off more rapidly than the top brasing.
Q. lias that part which has scaled off been replaced at all? A.
No sir.
Q Did you notice anything of that kind on any of the floors lower
down than the 8th floor? A. No sir.
Q. Have you noticed any had effects upon the mortar of the
building, due to freezing? A. The mortar on the side walls has
oozed out between the brick and damaged the sigrt that was painted
on the side.
Q. On which side? A. On both sides.
TRUSSED CONCRETE STEEL COMPANY.
87
4
| 4
i
►
►
*
‘ •
V
r
\
k -
►
r
►
►
1 ►
Q. Is that north and south or east and west? A. North and
south—no sir, it is east and west.
Q. How does the building face? A. The building faces north.
Q. On what street? A. On U Street.
180 Q. IIow far back does it run from U Street? A. 200 feet. •
Q. IIow largo a portion of those walls is covered by those
signs, if you recollect? A. About two floors.
Q. Near the top or near the bottom? A. Near the top.
Q. Do you know what was done bv Mr. Karrick or his workmen to
prevent the concrete freezing while the construction work was going
on? A. There were fires built on the floor below the floor that the
work was being done on, and the concrete was covered over at night
with canvas and straw.
Q. M ho saw that the fires were kept up during the night? A.
Watchman.
Q. Do you know what he was paid? A. $1.50.
(}. $1.50 a day? A. Yes sir.
Q. Up to what time was that watchman employed on that build¬
ing keeping the fires up—when were his services dispensed with? A.
About the latter part of January, 1906.
(J. IIow were those fires kept up; what was used in order to make
the fires? A. Coal.
Q. IIow was that brought upon the building? A. It was
1S1 brought up in wheelbarrows on the hoisting plant and dis¬
tributed on the floor.
Q. I suppose you would not know how much coal was used, would
vou? A. No sir, I would not.
Q. You say that stoves were kept burning and that the floor was
covered with canvas. Was there anything else put on the floor as
far as you know? A. Straw was put on the floor.
Q. When the workmen were putting up this concrete work during
the freezing weather would they have to suspend that work any
earlier in the day in order to make preparations to prevent the con¬
crete from freezing?
Mr. Siddons: The question is objected to as rather leading.
A. Yes sir.
(). About what time in the dav would they do that? A. In the
^ • _ */
morning when thev first started to work. Thev would be about two
hours in the morning uncovering and taking off the canvas and the
boards that were put over there to hold the canvas down to keep it
from blowing off. and in the night with covering up with the canvas.
Q. About how long would they take at night in covering it up
and preparing the fires, etc. A. From two to three hours.
Q. Do you know how many hours constitute a day’s work? A.
Nine hours.
182 Q. M ho was the foreman of the concrete work? A. When
do you mean?
Q. M’ell, at any time during the work on that building. A.
Magrini was the foreman of concrete.
Q. Do you know when Magrini left? A. The 23rd day of De¬
cember, 1906.
88
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. December, 1906? A. Yes sir.
Q. When was the building completed, in what year?
Mr. Siddons: He hits already testified to that. He made a mis¬
take. Ho means 1905.
A. 1905, yes sir.
Q. Do you know why he left? A. Mr. Karrick discharged him.
Q. How do you know that? A. 1 heard him.
Q. Do you know why he discharged him? A. For drunkenness.
Q. Do you know how much Magrini was paid? A. $4.00 a day.
Q. Who was the foreman of the carpenters during the construc¬
tion? A. Mr. Parker .
Q. Do you remember how much lie was paid? A. $3.35.
Mr. Siddons: How does this gentleman know what he was
paid?
183 Q. Mr. Siddon s wants to know how you know what those
«/
people were paid? A. I was time keeper in charge of the
payrolls.
Q. When did you say Mr. Parker left? A. Mr. Parker stayed
after the building was completed, on other work.
Q. Did you notice the shipments of steel as they arrived from the
Trussed Concrete Kteel Co.? A. No sir.
Q. \Y ho did check the steel work oft' as it arrived at the build¬
ing? A. Mr. Clark.
Q. So you would not be able to testify as to when any of it ar¬
rived? A. No sir.
Q. Do vou remember whether at anv time when material arrived
_ • •
Mr. Karrick was not ready to put it in the building? A. No sir.
Q. What are vour recollections about that, one wav or the other?
A. Whenever the iron was there we were always ready to go ahead
with the work.
Q. How much lumber was used in that building, if you know?
A. There was no lumber used in the building.
Q. Where was the lumber used? A. In making the forms for the
concrete.
184 Q. Do you know how many forms were used there? A.
1 do not know how many forms but T know about a floor
and a half.
Q. Was that at the start or later on? A. That was at the start,
Q. Were any additional forms made sifter that? A. Yes sir.
Q. By whom? A. By Mr. Karrick.
Q. Do you recollect about when those additional forms were
made? A. About the 1st part of November. 1906.
Q. 1906? A. 1905; I got it wrong.
Q. Did you observe any of the stucco work that was put on that
building? A. Yes sir.
Q. About how thick is that stucco-work? A. % of an inch.
Q. Are there any broken brick in it? A. No sir.
Q. How do you know that? A. Because T had charge of it,
Q. Would it be possible to put any broken bricks in the stucco
work? A. No sir.
trussed Concrete steel company.
89
Q. Why? A. It is too thin.
185 Q. Do you know whether or not the freezing weather had
any effect on the stucco work? A. Yes sir.
Q. What effect did it have? A. It made it peel off and had to
he new stucco work put on.
(j. You have spoken about the signs on the east and west walls
of the building covering certain places there from which the mortar
had fallen out. How did the falling out of the mortar affect those
signs? A. It made the signs so that it is almost indiscernible; you
can hardly see it in some places. It took the paint off the signs
and the mortar.
Q. About how much of the mortar on those walls has begun to
fall out. if you know; you say the building runs hack 200 feet in
depth? A. Yes sir.
Q. Does the mortar which has begun to fall out extend along the
entire length of wall for 200 feet?
Mr. Siddons: Objected to as leading.
A. No sir, not the whole length?
.1. About how far does it extend? A. About half wav of the
•/
building. I should think.
Q. But how far up and down does it extend, that is where the
mortar has come out? A. About 70 feet.
180 Q. 20 feet below where? A. Below the roof.
Cr< )ss-exa i n i n a t i o n.
Bv Mr. Siddons:
Q. Mr. Smyth I understood you to say that you were employed
by Mr. Karriek first in the latter part of October, 1905. Is that
correct? A. Yes sir.
Q. And what was the nature of your employment at that time?
A. Time keeper.
Q. At this building? A. Yes sir.
Q. Where are the books that you kept, the records that you kept
at that time? A. I have not them in mv possession.
Mr. Clephane: They are here, Mr. Siddons.
Q. Where are they; what did you do with them? Did you have
any office or place where you stayed and kept your books when you
were first employed by Mr. Karriek? A. I had a small office, a
shed.
Q. Where was that? A. On the building, on the ground.
Q. Whereabouts? A. In the front of the ground.
Q. Do you mean on the sidewalk? A. No sir, off the sidewalk,
near the front of the building.
Q. East or west of the building? A. At the west side.
1ST Q. Now when you began your employment there in the
latter part of November, 1905, how far had the building
progressed in construction? A. They were on the 7th floor.
Q. Now when did the first freezing occur? A. The early part of
November.
90
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. IIow early? A. The first week.
(}. llow long after that first freezing was it that you observed this
condition which you ascribe to freezing—this condition of the con¬
crete? A. The first freeze we had.
Q. The first freeze you observed this condition? A. Yes sir.
Q. IIow do you know it was due to freezing? A. Because I could
tell by the ice on top of the cement.
Q. 5 on say that there was ice forming on top of the cement? A.
Yes sir.
Q. But the peeling off, as you describe it. of this topping, how
did you know that that was due to the freezing? A. Because it
peeled off. it bubbled up when it was freezing.
Q. The concrete bubbled up when it was freezing. A. Yes
sir.
188 Q. After it was frozen, or how do vou mean? A. When
it was frozen it would bubble up or expand, rather.
Q. W hen did you first observe the freezing of the mortar in the
bricks, at the same time? A. Yes sir.
Q. When were those signs put on? A. I do not know the exact
date.
Q. Approximately? A. I should say sometime in June.
Q. And at that time, long before that time, you had seen this
effect of the freezing upon tlie mortar in the walls there, and also the
freezing of the concrete? A. Yes sir.
Q. So that when the signs were put on in June, if they were—if
you are right about that date—the bad effect of the freezing of the
mortar had alreadv shown itself had it. in the mortar; you had seen
or vou had observed it? A. Yes sir.
«/
Q. Did you have any conversation with Mr. Karriek about that?
A. No sir, I did not.
Q. You did not call his attention to it? A. No sir.
Q. Did he call your attention to it? A. No sir.
O. When did vou first talk to him about it? A. Probablv
189 a vear afterwards.
Q. It was a year afterwards before it was a subject of con¬
versation between vou and Mr. Karriek? A. Yes sir.
Q. How do you locate the date of the roofing in of that building
as about Jan. ‘25th, 190fi? A. Bv mv time books.
Q. Do they show you that the roof was in course of construction?
A. They show by the number of men we had employed when the
roof was put on.
Q. Can you turn to vour time book, if it is here, for that period,
and point out how you fix that date?
Mr. Clephane: Are these your books, Mr. Smyth (handing wit¬
ness a book)?
A. Yes sir.
Q. Just show me how you figure that out; how do you determine
that the roof of the building was finished by January 25th? A. By
the number of men that I have there. I worked more men right at
that time.
TRUSSED CONCRETE STEEL COMPANY. 91
Q. When the roof was being put on, do you mean, or after it
was completed? A. When it was completed, the last time.
Q. This book, I notice, says, “time for week ending Jan. 19th,
1906.’’ Now, apparently there is a great drop in the men for the
week ending Jan. 26th? A. Yes sir.
190 Q. So the roof was actually finished earlier? A. No sir;
we had this gang of men on there to rush the work.
Q. At this time, for the week ending Jan. 19th, 1906, you had
a large number of men? A. Yes sir.
Q. And in the week ending Jan. 26th, there were apparently very
few men working there. Would not that indicate that the work was
really completed—the roof work—about the end of this week rather
than the end of this one? A. No sir, because those men were put
on the roofs of the pent houses.
Q. You can give no other explanation about that than that, but
you figure out that it was finished Jan. 25, because in the week
ending Jan. 19th you had a lot of men on the job and you did not
have them the succeeding week, is that it? A. Yes sir.
Q. That is the way you fixed the date of the completion of the
roof? A. Yes sir.
Q. Now when you first went into Mr. Karrick’s employ in the
latter part of October, 1905, was there a watchman then on the
building? A. Y 7 es sir.
Q. What were his duties at that time? A. To look after the tools
and work around.
191. Q. What do you mean by worked around? A. That is
to look after the tools and see that the tools were put away
at night,
Q. Did he stay there night and day? A. No sir, he stayed there
at night,
Q. lie stayed at night when you first went to work there in the
latter part of Oct, 1905? A. Yes sir.
Q, And at that time his dutv was to look after the tools? A.
Yes sir.
Q. He was discharged, as I understand you, immediately after
the completion of the roof, which you fix as about Jan. 25, 1906; is
that correct? A. Yes sir.
Q. So you had no watchman there for any purpose from that
time on; is that correct? A. Yes sir.
Q. When the roof was on the building it was all open—I mean
open where the windows and doors were not in, at that time, was it?
A. Some of the windows were, yes sir.
Q. On what floor? A. On the 1st floor, in front.
Q. Was the glass in? A. No sir.
Q. What do you mean, that the windows were in? A. The
frames.
192 Q. On the 1st floor the frames of the windows were in by
the time the roof was on? A. Yes sir.
Q. Where was the material kept for the frames for the remaining
windows at that time—where was the material kept? A. It was
kept on the 1st floor.
92
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. In the building? A. Yes sir.
Q. Where were the tools of the men kept after January *25th? A.
They were kept in the building.
Q. No one was there to watch them after Jan. 25th at night? A.
No sir.
Q. What has been the character of your employment ; have you
anv trade, Mr. Smvth? A. No sir.
Q. What had been the nature of your work up to the time you
entered Mr. Karrick s employ in the latter part of October, 1905?
A. Bookkeeper.
Q. Your work then has been altogether clerical since you have
been working? A. Yes sir.
Q. What is the size of this mixer that you have spoken about?
Mr. Clephaxe: Mr. Siddons does not want you to guess at it. if
vou do not know.
193 Q. No. T do not want you to guess at it. do you know? A.
No sir.
Q. What was the capacity of that hoisting machine to which you
refer? A. That I do not know.
Q. What were the necessary tools that were there, to which you
refer, and when you referred to the mixer and hoisting machine?
A. Such as wheelbarrows and shovels.
Q. Anything else? A. Bakes to spread the concrete.
Q. Now from the character of the reinforced concrete work that
was being put in that building at the time you first came to know
about it. from Oct. 1905 on. do you know what the proper size mixer
ought to have been for that concrete work? A. No sir.
Q. Are you able to state what tin* capacity of hoisting machine
should be for the character of use to which it was put in that build¬
ing? A. No sir.
Q. You have no technical acquaintance with such matters at all,
have you, Mr. Smyth? A. No sir.
Q. You never worked over any of them, did you? A. No sir.
Q. Do you know anything about the process of putting in
194 reinforced steel concrete, the mixing of it. and the putting
of it in a building; have you any knowledge on that subject?
A. No sir.
Q. Now when you heard Mr. Karrick discharge Mr. Magrini. on
or about Dec. 23rd. 1905. where did the conversation take place be¬
tween them ; I understood you testified that you heard Mr. Karrick
discharge Mr. Magrini. for drunkenness, on or about December 23rd?
A. At the office T spoke of.
Q. That is in this little office to the west of the building there? A.
Yes sir.
Q. Who supervised the construction of the concrete work after
Magrini was dismissed? A. 1 did. that is with the help of Mr. Clark.
Q. You and Mr. Clark supervised and directed the work of putting
in this reinforced concrete? A. Yes sir.
Q. When did you first observe that portion of the signs on the east
and west walls, which von state are almost indiscernible bv reason
of this freezing? A. Probably six months afterwards.
TRUSSED CONCRETE STEEL COMPANY.
93
Q. Six months after what? A. After the signs were painted.
Q. I understood you to say that they were put up about June, I
think. 1906. did vou not? A. Yes sir.
(J. So that you first observed the conditions produced by this
freezing of the mortar about December or January, 1907, is
19A that correct? A. Yes sir.
Q. And until that time there had been no signs observable
to you of the effect of tliis freezing upon those signs out there—I am
not speaking now of the frozen condition that you observed before the
signs were put on, but after the signs were put on, had you observed
any of this condition which you ascribe to the freezing of the mortar
until December, 1906, or January, 1907? A. No sir.
Q. When did you first speak about that condition, if you ever did,
to Mr. Karrick, that is the condition of those signs produced by the
freezing, as you say? A. It might be a year afterwards.
Q. It was about a year afterwards that you observed this bad con¬
dition of the signs, is that it? A. Yes sir.
Q. And how did you ascertain that that condition was traceable to
the freezing of the mortar that had occurred a vear or so before? A.
By the mortar dropping out.
Q. I know, you have told us what happened, that the mortar
dropped out, but 1 say how did you know that it was due to the
freezing condition which occurred in November, 1905? A. The
mortar was frozen.
Q. Remember that 1 am not speaking of the period in 1905 when
you first saw tho mortar frozen; I say how did you know when
196 you saw, as you have testified here, the alleged effect of this
freezing upon the sign a year afterwards—how did you know
that that effect upon those signs was due to the mortar that had
frozen there, as you say, a year before? Do you understand my ques¬
tion? A. I do not know that I do.
Q. I want to know, if you can tell us, how, in December, 1906, or
January. 1907, whatever the time was, when you first, as I understand
you. detected the damage to these signs, how did you then know that
that damage was due to the freezing of the mortar that occurred a
vear before, more than a vear before, in fact? A. I do not know sir.
Q. You do not know? A. No sir.
Q. How did you come to say that it was due to that; you have
testified that it was due to that. Are you able to explain it? If
you cannot explain it, say so. A. No sir; I do not know that I
exactly understand what you mean.
The question was read by consent of the counsel.
A. Because I saw the frozen mortar.
Q. You saw the frozen mortar a vear before? A. Yes sir.
Q. N ow Mr. Smyth, when the walls were finished and the roof
was on what was the appearance and condition of those east and west
walls when in June, 1906, Mr. Karrick, or the company, whichever
it was, painted those signs upon those walls? A. They were
197 rough looking.
Q. Rough looking due to what? A. Mortar.
Q. TTow do you mean that it was due to the mortar? A. The
mortar oozed out.
94
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. The mortar was all oozing out, or had oozed out of those walls
when Mr. Karriek or the company, painted the signs upon them,
is that it? A. Yes ir.
Q. For the character and extent of the reinforced concrete work
that was put inti) that building, are you able to state how many forms
should have been used? A. No sir.
Q. You are not able to state whether or not the forms that were
in use prior to the making of those extra forms that Mr. Clephane
asked you about, were sufficient for the purpose or not? A. No sir.
Q. Now how do you know that those additional forms that were
made in November, 1905 were necessary because of the freezing
weather? A. ft would enable us to do the work faster.
Q. So that if those additional forms had been put in at an earlier
period, the work of the installation of this reinforced concrete would
have gone on faster, would it not? A. Towards the last.
(}. You of course do not know anything about the deliv-
19S eries of this material at the building, or elsewhere, to Mr.
Karriek or the company, prior to your employment by Mr.
Karriek, in the latter part of October. 1905? A. No sir.
Q. You do not know how many deliveries had occurred, do you?
A. No sir.
Q. Or how they had been made? A. No sir.
Q. Do you remember when the company first began receiving
goods on storage in this building—approximately when; T do not
ask you for the exact date? A. Sometime about the middle of
March.
Q. After the building was roofed in what, if you know, yet re¬
mained to be done to it? A. The compartments had to be built in
in the storage rooms and the doors put on.
Q. But how were they made? A. What is that, the compart¬
ments?
Q. Yes sir. A. They are made out of terra cotta blocks and
cement blocks.
Q. How many such were put in. if you know? A. T do not know.
Q. Approximately, can you toll us—you cannot tell?
Mr. Clephane: 1 object to this as not projKT cross examination.
199 A. No sir.
Q. Nad they all been put in when in March, 190(1, the
company began receiving goods on storage? A. No sir.
Q. You do not know, of course, how long that watchman had been
employed at night on the building prior to your employment in
October, 1905? A. No sir.
Redirect examination.
Bv Mr. Clephane:
Q. Mr. Smyth do you recollect whether any of the concrete work
was done after the roof was put on the building? A. The roof of
the penthouse was put on.
Q. Was any concrete work done on the first fioor until after the
roof was put on? A. Yes sir.
TRUSSED CONCRETE STEEL COMPANY. # 95
Q. Why was that? A. We had to put the floors in, the Hours that
were not finished and around the freight elevator.
Q. Was there any floor besides the 1st floor which had not been
finished in concrete at the time the roof was put on? A. Any floor
l>esides the 1st floor?
Q. Yes. A. No sir.
Q. Will you turn to your time book and state whether you find
the names of any concrete workers in that book after the week
200 ending January 19th, 1900? A. If 1 find any after January
19th?
Q. Yes, after January 19th. A. 1 see week ending January 26th.
Q. Do you find anv concrete workers there? A. Yes sir.
Q. Do you know what work they were engaged on? A. Laying
these floors; helping on roof.
(J. Now look in that book and see if you find any concrete work¬
ers? A. (After examining book.) Yes sir, Feb. 2nd.
(). What were they doing? A. (Examining book.) They were
making concrete blocks.
Q. You stated in your examination in chief that you thought the
roof was put on this building about January 25; was any concrete
work done in the roof? A. Putting the roof pn; no other concrete.
Q. Then the concrete workers, as 1 understand you, who were en¬
gaged on that building were also engaged in putting the roof on; is
that correct? A. Yes.sir.
(). Xow, have you any way of telling from that time book the exact
elate when the roof itself was put on, completed; you have stated that
you find in that time book the concrete workers for the week ending
Jan. 26th, and also for the week ending February 4th; can you tell
from your entries in that time book on what date the roof was fin¬
ished? A. No sir, I cannot tell the exact date.
201 Q. What made you think it was January 25thr A. Be¬
cause the week before was the last week that I had the large
gang of men on.
Q. That was what week? A. The week of the 19th; the next
week the roof was finished.
Q. How many concrete men did you have for the week ending
January 26th? A. Fourteen.
Q. IIow many concrete men did you have for the week ending
January 19th? A. Twentv seven.
%j
Q. I)o you know whether the concrete men that were employed
during the week ending January 26th, were employed on the roof
or on the 1st floor? A. They were employed on the roof floor.
Q. IIow do you know from that book whether those men were em¬
ployed on the roof on- on the 1st floor? A. Only from memory, Mr.
Clephane.
Q. Do you know whether the signs were put up before or after
the building was completed? A. What do you mean by completed
in this case?
Q. Well, were they put up before or after the roof was on? A.
After the roof was on.
96
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. And were they put up before or after the building was actually
finished? A. After the building was finished.
202 Q. And you think the building was finished about when 9
A. About the middle of May. .
Q. After the signs were put up did you notice that any of the
mortar fell out from between the joints? A. Yes sir.
Q. V ou have stated that in your recollection, goods were received
in that building for the 1st time about the middle of March, how
do you fix that date? A. That is from memory.
Q. You have no data from which you can state that accurately,
have vou? A. No sir.
Reeross-exai ni nation.
Bv Mr. Siddons:
Q. Before the signs were put on, after the building was completed,
you saw the bulging mortar in the east and west walls and it was
afterwards covered by the signs? A. Yes sir.
Q. Who put on those signs, if you know? A. No sir, I do not.
Q. Was it done bv some contractor, if vou know, or done bv Mr.
Karrick directing it, or the company directing it? A. It was done
bv Mr. Karrick.
Q. How many men were employed to put those signs on? A.
T wo.
203 Q. Did you keep their time? A. Yes sir.
(j. Are the books here with that in them? A. No sir.
Q. Can you produce them? A. 1 cannot.
(J. What became of them? A. 1 do not know.
0. What did you do with them when you were through with
them? A. That I could not sav.
%
Q. Now, turning to the time book that you have in your hand,
please look at the record of the week ending January 19th, 1006
and state how many men were employed that week, that is the week
ending January 10th? A. 27.
• * •
Q. And how many of those men were employed in putting in
the reinforced concrete that week? A. There were.27.
Q. All of those men were employed in putting in reinforced con¬
crete? A. Yes sir.
Q. Who employed them? A. Mr. Karrick.
Q. How many of them were, employed in putting on tin? roof
that week? A. 27.
Q. Now turn to the record for the week ending January 26th,
the next week, and state how many men were employed in
204 putting in reinforced trussed concrete *teel work that week?
A. 13.
Q. Where were they working, in what part of the building? A.
On the roof.
Q. W hat work was that that you referred to as being done on the
1st floor; what was the character of that work? A. It is concrete
work.
Q. Reinforced concrete work? A. No sir, it was the concrete
floors.
TRUSSED CONCRETE 8TEEL COMPANY.
97
Q. That was not work done by the Trussed Concrete Steel Co. or
in their contract? A. I do not know anything about the contract;
they were putting the floors in.
Q- \\ ho were putting in the floors? A. Mr. Ivarrick.
Q- That was not a part of the reinforced concrete work, was it—
when did the work of putting in the reinforced concrete terminate
on that building? A. l)o you mean the roof?
Q. \\ hen did the work of putting in the reinforced concrete in
that building end—the work of putting it in? A. About the 25th
of January.
Q. Then the last work of that kind was on the roof? A. Yes
sir.
205 Q. This work on the 1st floor—this work on the roof of
the penthouse—had nothing to do with that? A. Yes sir;
that was reinforced concrete work.
Q. Which was? A. The penthouse.
Q. \\ here is that? A. It is on the roof—above the roof.
Q. How many of those concrete men in the week of Jan. 26th
were working on the 1st floor, putting down the 1st floor; Are you
able to state from looking at your book? A. They were on the
roof.
Q. All of them? A. Yes sir.
Q. Then what work was done, and by whom, in putting down the
concrete on the 1st floor during that week of January 25th or 26th,
whichever it is. A. None of it was done on the 1st floor.
Q. Were any men in that book working on the 1st floor on the
concrete work on the 1st floor, that you are talking about, in that
week? A. No sir.
Q. How do you account for the falling off in the number of men
employed in the week ending January 19th and the week ending
January 26th; I think you said that in the week ending January
J/'th. there were 27 men engaged, and in the week ending January
26th. there were 14, did you not? A. Yes sir.
206 Q. How do you account for that falling off? A. The small
space they had to work in. They could not work such a num¬
ber of men.
Q. Where? A. On the roof.
Q. How could they do it the first week, the week of January 19th
and not the week following? A. Because they had not enough
room; it was a small space in finishing it up.
Q. They were finishing the roof in the week ending January 26th,
were they? A. Yes sir.
Q. What work were they doing that week? A. Putting on the
roof of the penthouses.
Q. That was a sort of raised place on the roof, this penthouse
was it not? A. Yes sir.
Q. But the rest of the building was roofed in but for that, was it
not? A. Not entirely.
Q. What was lacking? A. There was a small portion of it, lack¬
ing. of the main roof.
7—2057a
08
FIDELITY STORAGE CORPORATION ET AL. VS.
Redirect examination.
Bv Mr. Clephane:
Q. Mr. Smyth, did I understand you to say that there were 27
men in all working on that entire building during the week
207 ending January 1 Oth ? A. On the entire building?
0. Yes. A. No sir.
Q. What were the 27 men that you refer to doing? A. The con¬
crete work.
Mr. Clephane: That is all.
PEYERIC II. SMYTH.
Sworn to and subscribed before me this 12 of December, 190H.
ALEXANDER II. GALT,
Exa miner.
The witness before signing his deposition, desired to correct the
answer to the first question on cross-examination (page 90) from
‘‘Yes sir” to “No sir”.
ALEXANDER H. GALT,
Examiner.
Charles II. Sparsiiott, a witness produced for and on behalf
ol the defendant, having been first duly sworn, testified as follows:
By Mr. Clephane:
Q. Where do you live? A. At 912Vk 25th Street.
Q. Are you acquainted with Mr. Karrick, one of the defendants
in this cause? A. Yes sir.
208 Q. How long have you been acquainted with him? A.
Going on pretty near four years, now.
Q. Have you had any business dealings with him during that
time? A. 1 have been working for him from the time I knew him
up to the present time.
Q. In what capacity? A. As hoisting engineer for the time being
when the building was going on.
Q. What building? A. The Fidelity Storage Co.
Q. When did you commence to work on the Fidelity Storage
Company’s building? A. Do you mean when I took charge of the
engine?
Q. When did you commence to work there at all? A. As close
a«* I can get at it—I could not exactly give you the year—but it was
about the fitli or 7th of July, probably a little later than that.
Q. Had the building l>een started at that time? A. Yes sir.
Q. How far up was it? A. One floor.
(). When did you commence to work as hoisting engineer there?
A. I went to see about the job in the morning and came back at 12
O’clock in the day and took charge of it.
Q. About what time of the year? A. About July.
Q. That was when you first came to the building? A.
That was when I first went to work.
209
TRUSSED CONCRETE STEEL COMPANY.
99
Q. What did that Hoisting plant consist of? A. It consisted of a
hoisting engine for hoisting cement, brick and also for the concrete
mixer.
Q. IIow long did you remain on that building as hoisting engi¬
neer? A. Until it was completed.
Q. When was that? A. I could not exactly give you the day and
date, but it was in January, I think, sometime.
Q. When was the roof put on? A. That was put on in January 7
sometime, I think, too.
Q. Do you remember how long after the roof was put on it was
before the building was finally completed? A. No sir; 1 never kept
that in niv head. 1 could not exactly tell you now about that.
Q. 1 low long was the hoisting plant and the concrete mixer in
use on that building? A. Now to give you the exact date and all, I
could not do it.
Q. Was it there until the building wa- completed? A. Yes sir,
it had to be there until they finished putting the penthouse up.
Q. About how large a hoisting plant was it? A. 1 could not ex¬
actly give the capacity of the boiler.
Q. I would like to have you tell us as nearly as you can?
*210 A. Oh, 1 should think it would be about 20 horse.
Q.Can you describe the rest of the plant any more specific¬
ally than you have already done? A. I would not like to tell you,
or say about the amount of concrete that they turned out because I
*, *j
do not know exactly whether 1 would l>e sure that I was right or
wrong.
Q. Are you familiar with the use of a hoisting plant and concrete
mixer in this district? A. Well, yes sir. I think I can handle one as
* *.
good as any other man can.
Q. Have you handled any other concrete hoisting plant and con¬
crete mixers besides this? A. Well, I have for several parties, and
also ran one for—1 cannot think of that man’s name. I used to run
a boiler for him at night for a while.
(J. Never mind the name. A. And then stationary engineering
too.
Q. Do you know what is usually paid for hoisting plants and con¬
crete mixers of the description used by Mr. Karrick per day in this
district?
Mr. Siddons: I object; the witness lias not shown himself to be
qualified at all to testify to that fact.
A. That depends on who you are working for or whether you be¬
long to the Union or not.
Q. I am asking as to the price usually paid. A. The amount
usually paid is about $4.50 or $5.00 a day.
*211 Q. For what? A. For the hoisting engineer.
Q. That is for the engineer alone? A. Just for the engi¬
neer’s labor itself, yes sir.
Q, What is paid for the use of a hoisting engine and a concrete
mixer?
100
FIDELITY STORAGE CORPORATION ET AL. VS.
Mr. Siddons: Same objection on the same grounds as above
stated.
A. As clo.-e as I can get at it I think if I wanted to run one my¬
self, and the man’s labor. $0.00 would l>e a very cheap plant.
Q. What makes you think that $0.00 would be cheap; how do you
get at your figures? A. Because a man’s labor is worth $4.50, and
the run of the machine, for the wear and tear and the work of
putting in fuel, 1 think would cover the rest of it very easily.
Mr. Siddons: 1 renew my objection to this line of interrogation.
The testimony shows that the witness has not qualified to testify on
this line.
Q. Do you know when the steel from the Trussed Concrete Steel
Co. was delivered at that building from time to time? A. I cannot
remember.
Q. 1 am simply asking whether you do remember or not? A.
No sir; 1 cannot remember the dav and date.
212 Q. Did you see any of it when it came? A. Yes sir, I
saw it when it came.
Q. Do you know whether Mr. Karrick was ready to put it in the
building when it came? A. Yes sir.
Q. Do you know whether at any time during the construction of
the building there was any freezing weather? A. Yes sir.
Q. Do you know when that freezing weather commenced? A.
Well. I am not a weather bureau. That is something I could not tell
vou, the dav and dates of it.
%. j i
Q. Well, when the freezing weather set in did that change the
character of work that you were doing at all? A. Not exactly, no
sir.
(). What do vou mean bv not exactlv? A. I alwavs found some-
v * • • i
thing for mv machine to do.
Q. When the concrete was being hoisted up into the building,
how was it hoisted? A. It was hoisted with two cages and machine.
Q. Through your hoisting plant? A. Yes sir, through my hoist¬
ing plant.
Q. Did you have occasion to hoist up in that building anything
besides the concrete work? A. Well, oil and on ves sir. when the
i
iron came, the majority of the time the iron was hoisted up it would
be later in the evening.
213 Q. Did you ever hoist anything up beside the iron and
concrete? A. Yes sir. 1 carried coal up and brick.
Q. What did you carry the coal up for. do you know? A. We
carried coal up when the weather would be so cold up there that
they would put fire under the floors to keep the concrete after it was
laid, from freezing.
Q. Do you remember how much coal you sent up per day? A.
Yes sir; they would send from seven to eight wheelbarrows, as near
as I can come at it.
Q. How much would a wheelbarrow hold? A. The iron barrows
would weigh anywhere from 105 lbs., and the brick barrow would
probably weigh 10 or 12 lbs. more.
TRUSSED CONCRETE STEEL COMPANY.
101
Q. I (Jo not understand what you moan by an iron barrow and a
brick barrow. A. An iron barrow is all iron, handles, wheel and
body, and a brick barrow is just the body is iron, and the wheels
are iron and the handles are wood.
Q. You sav that these barrows would weigh that much. Do you
mean that they would weigh that much empty or with coal in them?
A. No sir, I am speaking about the coal.
Q. The entire weight including the barrow and the coal? A. No
sir.
Q. What do you mean? A. The barrow and the coal
*214 would weigh about 200 lbs.
Q. TIow much would a barrow weigh without the coal? A.
A barrow without the coal would weigh 74 and 75 lbs.
Q. When the weather wa> cold do you remember what time c,f the
day you stopped sending concrete up to them? A. \\ eh they would
stoj)—sometimes it would be probably dependent on the mixei ;
they might stop anywhere from 20 minutes to three or quarter ot
three to three o’clock. Of course it would he sometime when they
were setting in and be mixing, one or two more mixers up, and of
course that would have to go in. but anywhere from that time from
a little before U o'clock, say from 20 minutes before three.
Q. And when you stopped sending up the concrete what would
you send up after that? A. They would prepare to get brick up,
to have the bricklayers kept ahead with.
Q. When did you send for those barrows of coal that you speak of?
A. They went up after concrete. 1 suppose would be covered up,
and they would set them up after the weather got cold. Sometime
it would be my time to go home, and I would carry one or two
barrows up for the watchman extra.
Q. Have you any way of telling how much coal a week you
215 sent up there from the 15th of November to the 25th of
January? A. 1 could not exactly tell you that.
Q. Did you ever go upstairs in the building? A. It was very
seldom that T ever went up there because mv duty did not call me
up there.
Q. As a matter of fact did you ever go upstairs on the building
during the freezing weather? A. I went up there after my work
was done in the evening, yes sir.
Q. What for? A. T went up. when they had a watchman there,
and would give him sometimes a helping hand to get his fires fixed.
Q. Did you notice, during the period when you would occasion¬
ally go up to help the watchman with the fires, anything wrong
with the concrete work? A. No sir. T never examined it that close.
Of course my work was not constantly going up there; if it was,
I may have done it. Just now and then T would go up there, that
would bo about all.
Q. Have you since had, at any time, occasion to go upstairs and
examine the concrete work in the building? A. Well, after the
building was'completed 1 put a lot of rooms up and doors up in there.
T have had to take up sheets of concrete, the size of this thing here
(indicating) to get them out of my way. They would just be
loose.
102
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. What do you mean? A. The topping.
216 Q. About how far down would that be loose? A. It
would run, I guess, 100 feet.
Q. Which way? A. North and south.
Q. And how far east and west? A. It would go all the way over.
Q. On which floors, do you recollect? A. I think it was the 7th
or 8th and some on tlie 0th.
Q. Was there any time so far as you recollect when the material
came from the Trussed Concrete Steel Co. when Mr. Karrick was not
readv to use it? A. No sir.
«/
Cross-exa m i n a t ion.
By Mr. Siddons:
%j
Q. Mr. Sparshott, what is your trade? A. Well, 1 have been
following the stationary engineering and hoisting engineering for
the last ten vears.
V
Q. A"ou were employed by Mr. Karrick as hoisting engineer at
this time, were you? A. No sir, not at this time.
Q. I am not talking about the present time, but at the time of the
construction of this building? A. Oh; yes sir.
Q. Now this hoisting machine, consisted of how many platforms
that went up and down? A. Two cage?*.
217 Q. Two cages you call them? A. Yes sir.
Q. How long did it take for one of those cages to go, let
us say. from the ground up to the Nth or 0th floor, when you started
it up? A. 1 judged about six seconds.
Q. So that to get six or seven barrows full of coal up six or seven,
it would take ordinarily about sir nr seven seconds to take each one
up? That is about the time it takes to hoist them, is it? A. Well,
on an average of that, yes sir—that is to the 0th floor.
Q. And less than that of course, for the floors below? A. The
lower the floor the less time it takes.
Q. Now how did you figure out the weight of those barrows; did
you ever weigh them with the coal in them? A. Weigh the bar-
rows that carry the coal up. yes sir.
Q. And the coal also that was put in them? A. Yes sir.
Q. Where did you weigh them? A. I have weighed them off
and on.
Q. I am speaking of the coal that you carried up in this build¬
ing? A. It has been often weighed out there.
Q. I am asking where you weighed it? A. I have weighed it
out there.
218 Q. On what? A. On a set of scales.
Q. Where were those scales? A. In the warehouse.
Q. Which floor? A. The 1st floor.
Q. When were they brought there? A. The scales have been
there, I guess.
Q. Were they there when you first went to work there? A. No
sir.
Q. When were they brought there? A. I guess they have been
there two vears and a half.
TRUSSED CONCRETE STEEL COMPANY. 103
Q. I mean when were they 1 might there after you went to work
on this particular job? A. The scales?
Q. Yes, the scales upon which you weighed this coal. A. That
is what I am telling you; they were bought about two years and a
half ago. They were bought for weighing paper and freight and
such stuff as that.
Q. You are sure they were not there hack of two years and a
half ago? A. No sir.
Q. Do you mean that you are not sure, or that you are sure that
they were not there more than two years and a half ago? A.
219 They could not have been there more than two years and a
half; if they were I would say so.
Q. When you went up to help this watchman, after you
got through your work—by the way, when did your work end, in
your employment by Mr. Karrick in the building there—what time
of the day? A. From half past four—between half past four and
five.
Q. That is when you quit work? A. Yes sir.
Q. When you helped the watchman after that, as you have de¬
scribed, very occasionally, did you get any extra pay for that from
Mr. Karrick, or did you do that as a matter of accommodation
merely? A. Well. 1 would not be up there over four or five
minutes.
Q. It was a matter of accommodation? A. It was a matter of
accommodation. I would not be up there over four or five minutes.
Q. Where have you worked with such a mixing machine as you
had in this case—where else have you worked with one? A. I
never ran any mixer outside of this one.
Q. You said you thought the boiler of the machine that you were
operating there was about 20 horse power? A. Yes sir.
Q. IIow did von figure that out? A. Well, I never figured it out;
if I did I would not tell you near about what I thought it was be¬
cause if I figured it out I would know.
220 Q. Then it was a guess? A. Yes sir. I have never fig¬
ured it out.
Q. In the construction of this building the bricklayers putting
up the walls always had to be in advance of the men who were put¬
ting in this reinforced concrete work, did they not? A. Yes sir.
T think so.
Q. That was your observation? A. As far as that is concerned
T did not know anything about that because I could not work at
the top and bottom too; I could not be in two places at once. If you
ask me about the bricklayers that is outside of my line of business.
Q. But you were running the engine which hoisted the brick?
A. Yes sir.
Q. Now during the period that you were there running the engine,
if there was no steel material to hoist up to the different floors of
the building, as it went up, your engine was busy hauling other
stuff. was it? A. Hauling brick, yes sir.
Q. So your machine was never out of commission during the time
you were there? A. It was running regularly, yes sir.
104
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. There was always something to keep you busy and to keep this
machine busy in hauling material up to the different Moors? A.
Yes sir, always.
221 Redirect examination.
By Mr. Clepiiane:
Q. Were the scales that you have spoken of there before the build¬
ing was completed? A. Oh yes sir.
Recross-examination.
By Mr. Siddoxs:
Q. Just where were those scales located? A. Right up at the
front door.
Q. Can you tell us which side of the building? A. Yes sir; it is
on this side of the building. (Indicating the east.)
Q. What were they used for? A. They were used for weighing
up freight and stuff that they were going to ship, such as crates and
boxes.
Q. Mr. Karrick brought them there to weigh the stuff that came
into the building, did lie? A. lie bought them in case he had a
lot of goods to ship to different parts of the country. They would
weigh all this stuff and then load it on the wagon to go to the
depot. They would get the weight there before it was shipped away.
Q. Do you mean stuff on storage in the building? I do not know
that I quite understand what stuff' you refer to as being
222 shipped away? A. Boxes and crates with different articles
in them.
Q. Was that going on during the construction of the building?
A. No sir; it was after the building was completed.
Q. Did he have the scales there before the building was com¬
pleted? A. No sir; he did not get the scales until afterwards.
Redirect examination.
Bv Mr. Clepiiane:
<
Q. Mr. Sparshott, have you weighed the wheelbarrow load of coal
recently? A. Yes sir.
Q. When? A. I weighed it to-day.
Q. IIow much coal was in the wheelbarrow when you weighed
it? A. 105 pounds.
Q. Was that more or less than the amount which you were
accustomed to sending up on the building during its construction?
A. It was the same harrow that they used fire and one stuff and an-
other in for burning. Sometimes you could not get exactly the
same amount on there; maybe a little more or a little less.
223 Q. What is vour best recollection of the amount that you
were accustomed to sending up on that building as compared
with the amount which vou had in the barrow when you weighed it
to-day? A. I guess the average, with the brick barrow, would be
at least 1G5 or 170 pounds.
TRUSSED CONCRETE STEEL COMPANY.
105
Q. I did not ask you how much it weighed now; I am asking
you whether when you weighed it to-day you had more coal or less
coal in it than you had when you sent it up on the building? A.
No >ir; about the same, as near as I can get at it was running up.
Recross-examination.
By Mr. Siddons:
Q. What did you weigh the barrow of coal to-day for? A. For
curiosity’s sake.
«/
Q. Not with reference to this testimony at all? A. Well, I was
asked to do it?
Q. By whom? A. (Continuing.) What I thought one of them
would weigh and I thought T would weigh it and see. That is {is
far as I can tell you.
V
Q. Who asked you. A. Different ones asked me.
Q. Did Sir. Karrick ask you? A. Yes sir.
Q. And did you talk with him to-day about the testimony
you were to give here? A. No sir; I have not seen Mr.
Karrick at all.
Q. When did lie ask you about weighing this barrow? A. About
<i week ago.
Q. What did he suggest it to you for? A. Well now he did not
exactly suggest it to me concerning anything, only he wanted to
know what one of them would weigh and I told him I did not know
because I had never weighed one of them, and 1 just thought to-day
that I would weigh one and see what it would weigh.
Q. At the time you talked with him a week ago, or whenever
it was, did he tell you that he was going to get you to come down
here to testify? A. Well, he told me that I would have to be down
here, ves sir.
(). What kind of a barrow was it that you weighed to-day? A.
An Iron barrow.
Q. Where did you get it? A. It has been there ever since the
building was going on.
Q. You did this up at the building to-day? A. Yes sir.
(J. W ho was present when you weighed it? A. There is a young
man sitting right there who was present.
Mr. Clepiiane: Give his name.
225 A. Mr. Smvth and Mr. Hall.
Q. And you then figured out in your mind that the har¬
row and coal which you weighed to-day was about the same size
and the same quantity of coal that you hauled up in this building?
A. Yes sir. the same kind of harrow. W T e only put so much on it
until it ran over, and we used to put on it all that we could get on it.
Q. Who attended to the loading of the coal when you hauled it
up in the building at that time? A. Different ones; T could not
♦ ell you exactly who did it and who did not do it, but different ones
who loaded them up, outside of the watchman, I have told you about
him. who kept tab on every barrow that went up. T often counted
them rnv own self.
106
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. What did you do when you counted them? A. We used to
send them up every day, so I would just'get them into my mind
just about what was sent up day after day.
Q. Did you report the amount to any one at that time? A. No
sir; I did not have anything to do with that at all. There was a
time keeper there. He kept tallv of that.
CHARLES II. SPARSIIOTT.
Sworn to and subscribed before me this 12th dav of December,
1908 .
ALEXANDER H. GALT.
Examiner in Chancery.
220 Ambrose P. Gant, a witness produced for and on behalf
of the defendants, having been first duly sworn testified as
follows :
Bv Mr. Clephaxe:
Q. Where do you live? A. At 825 21st St., N. W.
Q. IIow long have you lived in this city? A. I have been here
five years this spring.
Q. Do you know Mr. Karrick. one of the defendants in this cause?
A. Yes sir. I do.
(). How long have you known him? A. I have known him since
about April. 1904. 1 think.
Q. Do you work for him? A. Yes sir.
Q. How long have you hecn working for him? A. Ever since
I have been in the city.
Q. Th what capacity? A. As carpenter, that is up until the later
years.
Q. Are you familiar with the storage warehouse of the Fidelity
Storage'Corporation at 1420 L Street, in this city? A. Yes sir.
Q. Did you ever work on that building? A. I did.
Q. When did you commence to work there? A. I corn-
227 meneed on that building May 11. 1905, I think.
Q. How far had the work progressed at that time? A. It
was started: it was at the commencement.
Q. What was your occupation there? A. Carpenter.
Q. How much lumber was used in the building? A. None, only
in the making of the forms.
Q. What do you mean by the forms? A. The forms to hold the
concrete floors. Of course we had to use lumber to make the forms
and we had to have our trestle work to set those forms on to hold
the concrete.
Q. Do you know how many sets of forms Mr. Karrick started
that building with? A. Two floors.
Q. Did he ever make any forms after that? A. He did.
Q. How many? A. ITc made half a floor.
Q. Do you know why he did that? A. Because it was getting cold
and we could not pull the ones out. take them out from the concrete,
those that we had. and we had to have extra forms to complete the
building.
TRUSSED CONCRETE STEEL COMPANY.
r.‘
Q. Do you know how long a form would remain in starting the
work before it was pulled out prior to the time the freezing weather
commenced? A. T do not know just the date, that is, how many
days, hut we left them in there until we got orders to pull
228 them out. T did not keep track of it.
Q. About when was it that you sav Mr. Karriek made those
extra forms? A. When we got to the 8th floor; T do not just know
the date.
Q. What was the condition of the weather at that time? A. It
was getting cold, freezing.
Q. Do you know how much lumber was used in those extra forms?
A. I could not sav as to the amount of lumber; I did not measure
it, but the building was 00 by 100 and we had to have enough forms
to cover the space of 00 by 100.
Q. Do you know how much lumber was worth at that time? A.
About $24. 1 think.
Q. How do you know that? A. I ought to know; T handled it
before 1 came there. We were selling lumber.
Q. How long had you been engaged in handling and selling
lumber before you came with him? A. About three years.
Q. Where was that employment? A. In Virginia, and down in
Maryland.
Q. And since you have been with him how much lumber have
you bought? A. A ery little since I have been with him.
Q. Have you sold any since you have been with him? A. No
sir.
220 Q. What occasion have you had to familiarize yourself
with the prices of lumber here? A. Onlv when T would buv
a small order for him. then 1 would know the price 1 would have
to pay.
Q. A"ou do not know how many 1000 feet there were in this ex¬
tra set of forms, do vou? A. I could not say.
Did you have occasion to notice what the concrete men were
doing on that building? A. Only by seeing them there working
when 1 was setting the forms up.
Q. After the freezing weather set in was there any difference in
the work which the concrete men did? A. There was.
Q. What difference was there? A. They had to stop earlier in
the evenings to build fires and cover up the concrete to keep it from
freezing at night, and then in the morning they would have to take
two hours, T suppose, to uncover it to go to work.
A. Exactly what did they do in the way of protecting the work
from freezing? A. They carried up coal and had stoves and fires,
and whe-lbarrow fires, fires on the sand underneath the floors over
the top covered with canvas and straw and they had it raised on
canvas and holes through the roof so that pipes would go through
so that the smoke and heat would accumulate and keep it from freez¬
ing as best they could.
280 Q. Do you know as a matter of fact that those precautions
were taken to keep it from freezing? A. Yes sir.
208
FIDELITY STORAGE CORPORATION ET AL. VS.
(J. As a mutter of fuel did those precautions keep it from freez¬
ing? A. To a certain extent it did. Of course it froze some.
Q. What do vou mean hv “to a certain extent?** A. If they had
not had the fir.vs the whole Hoor would have frozen.
Q. You say it did freeze some; how do you know that? A. From
the looks of it; it bursted up when it froze. Of course when it froze
you could scrape the top up with your hands, or anything else.
Q. On what floor did you find that condition? A. The 8th and
Oth floors.
0. About how large a surface is affected in that way? A. That is
00 by 100 on the 8th floor, and the Oth a good bit of the whole floor.
Of course it did not freeze the whole business, but pretty nearly.
Q. How far down would it scab* off—how far below the upper
surface? A. I guess one-sixteenth of an inch. Of course in some
place's it was deeper than others.
Q. Did you notice anything with regard to the condition of
the mortar after the freezing weather set in? A. 1 noticed that it
came out.
281 Q. Where did it come out? A. All round the whole wall,
from the 8th floor up.
Q. Do you know when' the .-igns arc on that building? A. On
the Fast and West side-.
Q. Do you know whether the mortar has come out of the signs
at any place? A. I can set* it from the 4 ground, that it has come out
and damaged the sign.
0. What kind of mortar was used on that building? A. Cement
mortar.
ii ow do you know that? A. I saw the man put the cement
in it. Of course I am not familiar with mortar, only as I saw them
mixing the cement mortar, and they used it on the building where
I did the carpenter work: I had no occasion to bother with the mor¬
tar.
Q. Do you know whether a watchman was employed on that
building (luring any portion of it' construction? A. Yes sir.
Q. During how much of the time was the watchman employed?
A. Do you mean for this fire business?
Q. Yes. A. From about the 15th of October until the roof was
completed.
Q. Do you know how much the watchman was paid? A.
232 I heard him say that he got $1.50 a day but T do not know
that.
Q. Do you know a man named Magrini who was employed on
that building? A. T did.
Q. What was his business? A. Concrete foreman.
Q. Do you know when he was employed there? A. He was em¬
ployer] from the time it started until they got to the 0th floor, or
pretty near the 0th floor. T am not sure.
Q. About what time of tin* year was it that he left? A. In De¬
cember. 1003.
0. Do you know why lie left? A. They said he got fired.
Q. Do you know whether he was discharged or not. personally 9
A. Not personally, no sir. I was not there.
TRUSSED CONCRETE STEEL COMPANY.
109
Cross-examination.
By Mr. Siddons:
Q. When diil you finish your trade as carpenter? A. Well, I
have been working now for ii\e years. 1 did not go into the Union.
Q. Tell us when you finished your trade as carpenter? A. I say
I did not serve any time as apprentice hoy; I just went in and took
it up.
23d 0. When did you do that? A. Do you mean started?
0. Yes. A. Five years ago, when I first came to Wash¬
ington.
Q. So you had begun work as carpenter and had been working
as carpenter about a year when you went to work as carpenter for
Mr. Karrick? A. That is on this building, yes sir.
Q. What was the character of your work there, what particular
part of the carpenter work, all or any of it? A. Making the forms
under the carpenter foreman.
-1. Forms of what? A. For the concrete floors, making and set¬
ting them.
Q. And that work continued up until when? A. Until Jan¬
uary.
«/
Q. When the building was roofed in? A. W hen the building
was roofed in, yes sir.
Q. What was the kind of lumber that you used there? A. W T o
used one by six boards.
Q. I do not mean the size, but what kind of lumber was it? A.
It was supposed to be good lumber.
Q. What kind? A. Pine.
(}. W hat kind of pine? A. Georgia pine.
234 (J. Was it new? A. Yes sir.
(j. All of it was new? A. Yes sir, all but the trestle work;
there was some second-hand work there. It was just as good as
new.
Q. Was all of that, when those extra forms were begun to be
made, new? A. All extra forms were of new lumber, bought and
hauled there.
Q. That watchman, you say, was brought there on or about Oc¬
tober loth to fix fires? A. Somewhere about that—November, was
it not?
Q. I understood you to say October loth?
Mr. Clephane: lie said October before.
Q. W’liat is the fact about that—was it October or November?
A. It was November, I am sure about that, when the weather began
to get cold; it was freezing.
Q. And this watchman was not brought on the building until the
cold weather commenced? A. No sir.
Q. And only for the purpose of keeping up the fires? A. Keep¬
ing up the fires to keep the concrete from freezing.
Q. So his first employment around there, was, as you observed it,
110
FIDELITY STORAGE CORPORATION ET AL. VS.
in running uj» and keeping these fires going? A. We had
-35 him as helper there until it got cold and then put him on as
watchman.
Q. When was that? A. He worked from about June, to my rec¬
ollection.
Q. So he came to work on the building about a month after you
came there? A. After I came there; he came there about June.
Q. And he worked as helper? A. Just as helper carrying lumber
for the men.
Q. Do you remember Mr. Clark? A. I remember Mr. Clark.
0. Did he help to do odd jobs like Clark? A. He worked with
the carpenters carrying lumber for them and getting it around in
place.
Q. Did he help them with the sawing or hammering? A. No
sir, he did not do anything with the tools.
Q. So he was carpenters helper? A. Yes, sir; that is what they
call it.
Q. From June until when? A. To November.
Q. Then he was taken off? A. Yes sir, and put on as watchman
to keep the fires.
(). When did he leave there? A. In Januarv.
Q. What part of January? A. The last of January, I do not know
the date.
23b Q. When the roof was finished? A. Yes sir; when we got
through with the fires.
Q. Was your work over then? A. Well, I stayed there and helped
to finish up after the roof was on.
Q. What carpenter’s work was there for you to do after that?
A. I did not do carpenter s work after that. I went inside.
Q. What did you do? A. Helped to set the tile.
Q. What other work did you do. did you help to mix the con¬
crete? A. No sir.
(J. Nor the mortar? A. No sir, 1 did not.
Q. But you turned your attention from carpentering work to
tiling work? A. Tile-setting.
Q. Was that so with the other carpenters who were up there; did
they turn in and help too on that? A. No sir; after we got the roof
finished they laid them off.
Q. You were the only one who was reserved? A. Yes sir.
Q. And you began laying tiles? A. Yes sir.
Q. Whereabouts? A. In the building, on different floors.
Q. How many other men engaged on that work were there?
237 A. In tile setting?
.1. Yes. Q. 1 think then* were three other nu/n.
Q. Where did they come from? A. They were men who were
there.
Q. What had they l>een doing previous to the tile work? A. One
bad been working on the iron, and helping the concrete men. The
other was Mr. Sparshott, the engineer.
Q. He helped to tile, did he? A. He helped to tile.
AMBROSE P. GANT.
0
TRUSSED CONCRETE STEEL COMPANY.
Ill
Subscrit>ed and sworn to before me this 12" day of December,
1908.
ALEXANDER H. GALT,
Examiner.
Without concluding the testimony for the defendants an ad¬
journment was taken to meet Wednesday December 16, 1908, at
2 o’clock P. M.
Washington, I). C., December 16, 1908
Met pursuant to adjournment, at the otlice of Walter C. Clephane,
Esquire, Fendall Building, Washington. D. C., on the above date for
the purpose of resuming the taking of testimony on behalf of the de¬
fendants in the above entitled cause.
288 Present: Frederick L. Siddons Esquire, Solicitor for the
complainant; Walter C. Clephane Esquire, Solicitor for the
defendant Karrick. and Allan O. Clephane, Esquire, Solicitor for
the defendant, the Fidelity Storage Corporation. Also the defendant
Karrick in person.
Charles Gregg, a witness produced for and on behalf of the
defendants, having been first duly sworn, testified as follows:
By Mr. Walter C. Clephane:
Q. Where do you reside? A. No. 1812 G Street Northwest.
Q. IIow long have you resided in this city? A. Since the 1st
of July 1907.
Q. What is your occupation? A. That of architect.
Q. Are you in business for yourself or associated with others?
A. I am in business with others.
Q. Before 1907 were you in business for yourself or associated
with others? A. I was associated with others.
Q. What was the name of the firm? A. Beecher, Friz and Gregg.
Q. Were they architects of this city? A. No sir; Baltimore.
Q. IIow long had that firm been engaged in business, if
289 you know? A. Since February 1904.
Q. What is your experience as an architect; how long have
you been in business yourself? A. Well, since the first of the pres¬
ent year, here, and three years in Baltimore.
Q. Prior to the time when you entered upon your connection with
this firm, will you shite what your business had been? A. I was
superintendent for Wyatt and Nolting of Baltimore.
Q. In what business? A. Architects.
Q. How much experience altogether have you had, not only as a
member of a firm of architects, and as superintendent, but in archi¬
tectural lines generally? A. In architectural lines generally for
fifteen or sixteen years.
Q. In what capacity? A. As draftsman, superintendent, and in
practice for myself.
Q. During that time, or any portion of it, have you had occasion
to superintend or become familiar with the business of concrete work
in buildings? A. Yes sir.
112
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. What experience have you had in that connection? A. On
the Baltimore Custom House, and as representing Hornblower and
Marshall.
*240 Q. Hornblower and Marshall are a firm of architects?
A. Yes sir; a firm of architects in Washington; and on the
Mardel (larage of Baltimore, and a four story office building for
James Holmes Whitely in Baltimore, and in addition Alexander
Brown and Sons’ bank in Baltimore; also some of the foundation
work here on the National Museum for Hornblower and Marshall.
Q. Did you have anything to do with the preparation of the
} Ians for the storage warehouse of the Fidelity Storage Corporation
at 1420 C St. in this city? A. Yes sir; they were prepared under
mv snjK‘nision.
D. Have you examined that storage warehouse since it was com¬
pleted? A. Yes sir.
Q. Have you noticed the condition of the concrete work in that
building? A. The conditions that I found were that a very large
percent of the surface had scaled off; I should judge 50% on the
eighth floor, and about 00% on the ninth.
(>. Have you had sufficient experience in concrete construction
work to be able to state what, was the cause of that condition of
things? A. In my judgment I should say that it was caused by
the surface becoming frozen.
Q. Did you make any examination at any time of the mortar
between the bricks on the east and west walls of the building? A.
Yen sir
241 Q. What examination did you make? A. I examined the
walls and found that quite a large |>ercent of them were
damaged bv frost.
Q. How did that damage the building? A. The damage was
apparent by the mortar not having any life to it, and in quite a
nun liter of places falling out.
(}. Do you know whether any portion of that mortar which fell
out was underneath the signs at present on the east and west walls
of the building? A. Yes sir.
Q. If mortar should be laid upon a day, the night following
which freezing weather set it. what would be the effect upon the
mortar? A. The effect would be that there would be a tendencv
to, what 1 would call, pop, that is, fall out of the joints, or it may
remain in there a little time and then fall out.
Q. IIow soon would that condition develop? A. T do not think
there is anv fixed time for it.
Q. How long after the work is completed, have you found that
such condition becomes apparent for the first time? A. In some
instances it has been a case of three years when I have noticed it.
Q. What would be the effect on the stucco work of freezing-
weather following the day when the stucco work was done?
242 A. The effect would be that the surface would fall off. that
is scale.
Q. Are you familiar with the process for retqpping concrete work
which has scaled off under the conditions you found on the eighth
TRUSSED CONCRETE STEEL COMPANY.
113
and ninth floors of this building? A. My judgment, in such cases,
would be based upon estimates which 1 would receive for it from some
reliable contractor.
Q. Have you had occasion to receive estimates of this kind? A.
Yes sir; I asked for an estimate for refinishing that building.
Q. What would be the etfcct in Washington, Mr. Gregg, of doing
concrete construction work after the middle of November?
Mr. Siddons: The question is objected to as irrelevant and im¬
material. It has no bearing on the issues in this case.
A. The effect here is such that the District docs not lay sidewalks
after the 1st of December.
Mr. Siddons: All of this testimony is objected to without my
repeating my objection.
A. (Continuing:) Because there is a likelihood of a sudden change
of temperature and the work becoming damaged over night before it
sets.
Q. Damaged in what way? A. By frost.
Q. I would like to ask you whether if work is done on a
*243 day when the temperature is above freezing, and in the even¬
ing of that day precautions are taken to keep the work from
freezing during the night, such as putting stoves on the floor
underneath and covering the work of construction with straw and
canvas, and running pipes from the floor below to the floor under con¬
struction. with the idea of keeping the heated air over the surface
of the work under construction, it would be reasonable to suppose
that the effect of freezing temperature during the night might be
avoided?
Mr. Siddons: 1 object to the hypothetical question put because it
is not based upon any evidence in the case.
A. I do not think that work, even under such conditions could
be guaranteed.
Q. While you say that it could not be guaranteed, might not
such precautions, to some extent, avoid the results which ordinarily
would be incident to freezing? A. It might, ves sir.
Q. Have you made any estimate of the amount of space on the
walls of this building where the mortar has fallen out? A. It
has fallen out to about twenty feet from the top of the building on
the east and west sides.
Q. For about how deep, do you suppose? A. In the thickness of
the wall do you mean?
Q. No; does it run the entire depth of the building back from U
Street, or not? A. Approximately, yes.
Q. Did you notice any mortar falling out of the building
244 on the inside of the walls anywhere? A. Yes sir, at the
level of the ninth floor.
Q. And how much space was occupied by walls where the mortar
was falling out?
Mr. Siddons: 1 object to that question—how much space was
occupied by the walls where the mortar was falling out.
8—2057a
114
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. It is not in the proper form. I admit. About how much of
the walls, the area of the walls, on the inside did you notice to be
covered by mortar which was falling out in the way you have in¬
dicated? A. It was an average of about 12 inches above the floor
running the length of the sides.
Q. Have you examined the signs on the east and west walls of
the building? A. Yes sir.
(}. What is the condition of those signs? A. The signs are
badly damaged by the mortar falling out of the joints.
Cross-examination.
By Mr. Siddons:
Q. When did you leave Washington, Mr. Gregg, after you pre¬
pared the plans for this building,
when you prepared them? A.
when the plans were prepared.
Q. And for whom did you prepare them? A. The plans were
prepared for Janies L. Karrick.
Q. Do you remember when you prepared them? A. In
245 the latter part of 1904 and the beginning of 1905.
Q. Did you make a complete set of plans and specifica¬
tions. A. 1 made a complete set. of architectural plans and a memo¬
randa of specifications.
Q. What do you mean by a memoranda of specifications? A. 1
made just a brief summary of the different parts to be incorporated
in the building.
Q. Do you mean to he understood as saying that what you did at
Mr. Karrick\s request, was to prepare a complete set of plans and
specifications, or only what you call architectural plans and simply
a memorandum of specifications? A. I mean that the drawings
were complete with the exception of the engineering part of the
work.
Q. Ilow was it as to specifications? A. The specifications, as
stated before, were a memoranda, not going into detail or actual
composition of the different parts to he incorporated but calling for
them in a general wav.
Q. Did you have anything to w as a part of your employment
by Mr. Karrick, with superintending the construction of this build¬
ing? A. No sir.
Q. Did you see it during the progress of its construction?
24(i A. I do not recall visiting the building during its construc¬
tion.
Q. You were fairly constantly engaged in Baltimore until you
came here, as I understood you, in the beginning of this vear? A.
Yes sir.
or were you living in Washington
No sir; 1 was living in Baltimore
Q. When did you first see the building for which you prepared
these plans? A. My first recollection of it was after the building
was finished and occupied.
Q. Can you tell us the time of the year that was? A. I cannot
at present: it was sometime in the last past two years, but I cannot
recall when.
TRUSSED CONCRETE STEEL COMPANY.
115
Q. Were you in Mr. Karrick’s company when you saw it? A.
Yes sir, and then I did not make a visit over the entire building.
Q. Did you make any examination for the conditions which you
have been testifying about to-day? A. No sir.
Q. When did you do that? A. That was done within the past
three or four weeks.
Q. Can vou tell me what was the character of the mortar in that
building? A. If I recollect aright the memoranda-
Q. I do not mean what you may have specified, but what actually
went in in the way of mortar, and everything; do you know?
247 A. No sir.
Q. Did vou examine anv of the mortar that vou testified
had fallen out—did you see any of that? A. Acs sir.
Q. When, within the last few weeks? A. Within the last few
weeks.
(J. Where did you find that? A. 1 found that on the ninth
floor, and on the outside at the top.
Q. Do you mean on the roof? A. Yes sir.
Q. Did you make any analysis of the mortar? A. No sir; none;
1 just examined it in a general way. There was no analysis.
Q. When you saw the building first after its completion were the
signs up? A. I think they were.
Q. Did you then observe the damage to them? A. No sir.
Q. When you saw them within the last three or four weeks was
the damage very apparent? A. Very.
Q. Can you see it from the street? A. Yes sir.
Q. And you give your testimony from your view of it from the
street—the view of the signs from the street? A. I saw the signs
from the top of the building.
Q. Can you see it by looking from the top? A. By look-
248 ing over, yes sir.
Q. That appearance that you noticed of those signs, that
you observed in the last three or four weeks, is quite obvious from
the street? A. Yerv.
Q. Do you know anything about the installation of what is called
reinforced concrete? A. Yes sir.
Q. Do you know anything of this system known as the Kahn
system of reinforced concrete? A. Yes sir.
Q. Have you supervised, or had anything to do with the. instal¬
lation of such system in any building? A. Yes sir.
Q. Where? A. As I said a few minutes ago, the work that I have
superintended is not exact with the same composition as that but
it is using a portion of the Kahn system.
Q. What building? A. The building that I now have under
construction on U street, right next to the warehouse.
(j. Are they putting in this reinforced concrete there now? A.
Yes sir. There is reinforced concrete going on now.
(}. Is that one of Mr. Karriek’s buildings? A. No sir.
Q. What experience have you had in installing reinforced con¬
crete? A. Well, as I said a few minutes ago, the Mardel
240 building—the Mardel garage, a building four stories in
height, including basement.
1 l(i
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Is that completed? A. Yes sir.
(J. When was that constructed? A. It was constructed about
two and a half or three years ago.
Q. You superintended its construction, did you? A. No sir, I
did not superintend it. The drawings were made in my office. Mv
partner superintended the construction.
Q. When was the building commenced, if you can state, and
when was it finished? A. The Mardel building was started sometime
about three or four years ago, I cannot recall exactly.
Q. I mean the time of the year? A. Oh, that was started in the
summer.
Q. And completed when? A. It was completed in the fall.
Q. Do you know of any building which has put in the system of
reinforced concrete that was built in the winter? A. The office
buildings for James Holmes Whitelv, which my firm erected; some
concrete work there went in in the winter.
Q. Are you familiar with any buildings here in the District,
other than the Fidelity Storage building, and the one adjoining it,
that you referred to, in which reinforced concrete work has
250 gone in—here in the District? A. Not under my direct ob«
serration, no sir.
Q. Hut do you know of any? A. I know of some, yes.
Q. Do you wish to give it as your professional opinion Mr. Gregg,
that this reinforced concrete steel work can never be installed in the
winter time safely? A. I do not mean to infer that it could not be
installed safely but I say there is risk taken in connection with the
installation of it.
Q. Within your professional experience and knowledge, is it not
a risk most frequently taken? A. It is a risk most frequently taken,
but the results cannot be guaranteed.
Q. That is true, not merely of the installation of reinforced con¬
crete but it is true of the most ordinary building construction work
where mortar has to be used: there is risk in putting them up in the
winter time? A. In freezing weather, yes sir.
Q. Yet the risk is considered not so great but what the building
operations are everywhere conducted all through the winter; is that
not so? A. There are exceptions. It depends on certain conditions,
the man’s time-
Q. I am not speaking of exceptions; I have no doubt there are.
1 am speaking of the general rule within your knowledge? A. The
general rule is that we endeavor to get work done as quickly as we
can.
251 Q. That is not an answer however.
The question was repeated.
Q. As a general rule? A. As a general rule.
Q. Did you have anything to do with preparing the contract for
this building? A. No sir.
Q. When did Mr. Karrick first speak to you about the damage
that had been done to his building by its freezing? A. I do not
recollect the exact time, but since I have been back In Washington,
which has been since last July a year ago.
TRUSSED CONCRETE STEEL COMPANY.
117
Q. lie had not spoken to yon before that time? A. No, simply
because 1 was in Baltimore. I did not see him.
Q. When you saw the building after its construction he did not
speak to you about it, did he? A. No sir.
Q. Did Mr. Karriek request you to make the estimates here that
you have testified to t-o-dav? A. Yes sir.
Q. Did you go over with him at that time the causes for the dam¬
age that you perceived? A. Yes sir.
Q. Did he tell you how the damage came to be inflicted? A. He
gave me his opinion as to how it came to be indicted, yes sir.
252 Q. And you agreed with him? A. I agreed with him.
Q. Is it not within your professional experience, or your
experience as a superintendent of building construction work, that
dampness, where frosty weather occurs, may make its appearance in
a building after it is completed? A. Yes sir.
Q. And that too, although the building itself has been completed
in the summer time, and that one of the most difficult things to ex¬
plain is the appearance of dampness in walls, and consequent—in
freezing weather—freezing of the mortar after the building is up?
A. No sir; I cannot say that a building finished in the summer time
the frost would have any effect on it, even if the walls do become
damp.
Q. Have you not within your professional experience, or your ex¬
perience as a superintendent of a building, known that dampness
has appeared in the walls and floors? A. Dampness may occur, yes
sir, but not frost.
Q. Dampness first appears? A. Yes.
Q. And it is almost impossible to explain the cause of it? A.
There have been such cases, yes sir.
Q. Is it not quite frequent; is it not one of the most puzzling
things for contractors and architects to explain the appearance
253 of dampness in floors of buildings and walls of buildings. A.
I do not know that I could call it puzzling. I cannot recall
an instance where it has not been explained.
Q. Supposing that dampness appeared in the walls of a build¬
ing, and then there is freezing weather while they are damp, is
that going to have an effect on the mortar? A. Not after it once
sets.
Q. It may be ever so damp? A. Yes sir; soaking wet and freez¬
ing; after it once sets it does not affect it.
Q. It does not change or affect it at all? A. Not in my judg¬
ment.
Q. In what other instance have you see- the effect of freezing
upon concrete such as you saw in the Fidelity Storage Building?
A. In quite a number of cases in the sidewalk work in the city
of Baltimore.
Q. There you have seen this same condition? A. The same con¬
dition, that the topping sloughs off.
Q. Is that no- ascribable to any other cause? A. I do not think
so.
Q. You know of no other cause to which it could be fairly
118
FIDELITY STORAGE CORPORATION ET AL. VS.
attributed excepting that it was laid in freezing weather? A. That
would be my opinion of it.
254 Q. Do you know how long ago it was that the scaling off
took place on the eighth and ninth floors of this building?
A. That I could not say.
Q. How much of the mortar has fallen out that you have testi¬
fied to, in the walls of the building? A. In the walls, as I pre¬
viously stated, about a foot above the floor on the east and west
sides, and on the exterior, more or less twenty feet down from the
top.
Q. I did not make myself clear. I mean taking the mortar be¬
tween the bricks, between two bricks, let us say; how much of that
mortar has fallen out, approximately? A. Do you mean how deep
it has fallen out in the joints?
A. Yes; how far it has come out? A. I should judge from a
half to three quarters of an inch.
Q. That was the condition as you observed it on the eighth and
ninth floors, inside and out? A. On the outside especially.
Q. The walls, I mean, not the floors? A. Yes sir.
Q. And that condition generally prevails, does it? A. Yes dr.
Of course I do not mean to infer that that depth of falling out pre¬
vails, but it is impossible to say how far back the frost has gone
until the joints are dug out.
Q. What do you mean by joints? A. I mean the joints
255 between the brick work where the mortar is. You know that
two bricks are placed one on top of the other?
A. Yes. A. Well, the composition, or mortar, holds those two
bricks together, and that is incorporated in a joint, and that is
where the frost gets in and does the damage to the brick work be¬
cause it loosens the contact between the bricks.
Q. Let me put in my way- A. The only way I can describe
it is to repeat what I said a moment ago. It is the composition
of the material between two bricks.
Q. What is the joint? A. The joint is the connection between
two bricks.
Q. Did you see any quantity of mortar on the floor inside where
it had fallen out of the walls? A. No sir, because the building is
kept in first class condition as to cleanliness. 1 was impressed
on that point.
Q. Where are the walls on the inside observable on the eighth
and ninth floors, the whole length of the building? A. The whole
length.
Q. Is there no compartment, or anything, on that eighth or ninth
floor in the way of rooms or compartments? A. There are storage
rooms on some floors but that does not prevent your seeing the
walls. Thev are not covered.
%/
256 Q. The eighth and ninth floors then are the floors as I
understand, on which you saw this mortar? A. No sir; the
ninth floor was the one that impressed me, on the south end. There
are no compartments on the south end.
Q. How far? A. That is clear. I judge half the floor.
TRUSSED CONCRETE STEEL COMPANY.
no
Q, So that the surface of the wall is exposed? A. Yes sir.
Q. And where you detected this mortar frozen, as you have testi¬
fied, is about twelve inches above the floor? A. Yes sir.
Q. And runs back that width a distance, vou think, of half the
floor? A. That is one-half that is exposed to view. Of course
going into those compartments you can examine the appearance.
But that is the portion that is open to one view of it.
Q. I sav, wherever you saw it, whether in a compartment or
where it is clear, the bricks that are affected, or the mortar of the
bricks which has been affected in the manner you have described,
is about twelve inches, and running a distance of half of the build¬
ing, did you say? A. No sir, a greater distance than that. Almost,
say, the entire distance.
Q. Do you know the depth of that building? A. It is 200 feet
deep.
257 Q. And there is a space on the east and west walls twelve
inches in width? A. Yes sir. for about 200 feet deep.
Q. There are about 200 feet, at that point, affected in that way?
A. Yes sir.
Redirect examination.
By Mr. Clephane:
Q. M ere you talking last about the interior of the walls or the
exterior? A. I was talking about the interior; the condition you
could see from the floor.
Q. Now are there any walls running north and south through
the center of that building? A. Yes sir.
Q. How many walls are there? A. Two.
Q. Did you observe any condition of the walls such as the mortar
falling out on those interior walls, that you have just alluded to?
A. Yes sir.
Q. What condition did you observe on those walls? A. The
conditions there were the same as the interior walls just mentioned.
Q. Now referring to the sloughing oft' of the concrete which you
have mentioned on cross examination, if that concrete
258 sloughs off is it possible to replace it by a new topping in
such a way as to be sure that that new topping will stick?
A. I do not believe there is.
Q. You stated in answer to a question of Mr. Siddons that it
was the practice to finish a building as soon as possible, or as
early as possible—I do not remember just what language you used
in that regard. Will you explain just what you mean? A. I
mean that you want to take advantage of all of the available time.
There are times when work will shut down in the beginning of
winter and not start up until the spring.
Q. Why is that? A. On account of the conditions of the tem¬
perature, but the situation is such now that we are obliged to work
on any good day that will present itself, provided we can finish
early in the afternoon so that the work can be protected, that is
the cement or mortar, for its initial set.
Q. When you say that it was always the endeavor to finish as
120
FIDELITY STORAGE CORPORATION ET AL. VS.
early as possible, do you mean with regard to the season of the year?
A. Yes sir.
Q. Just what season of the year did you have reference to with
regard to finishing? A. 1 mean, as stated a few minutes ago, be¬
fore bad weather sets in.
Q. There is one question that I forgot to ask you, that I
259 should have asked you on direct examination. If broken
brick is used in concrete construction in a building such as
the Fidelity Storage Corporation warehouse, involved in this suit,
does that have anv had effect on the concrete work? A. Not in
my opinion, no sir.
Recross-examination.
Bv Mr. Siddons:
%>
Q. When you were speaking about finishing up a building, tak¬
ing advantage of time, Ac., in response to Mr. Clephane’s question,
you were not referring to the Fidelity Storage Building were you?
A. No sir, because I had nothing to do with the construction of that
building.
Q. In the fifteen years that you have acted as draftsman and
superintendent for architects, and as architect yourself, have you
not known of any number of building operations that commenced
only in the late fall? A. 1 cannot recall at present.
Q. Do you mean that you cannot recall a single one that was
commenced- A. In the late fall?
Q. Yes. A. 1 cannot think of any at present.
Q. Anywhere during that time? A. Of course there are places
where they do commence at that time but I cannot recall any par¬
ticular one.
Q. I am not asking you to name it, but in your experience and
knowledge, having been connected with building operations
for fifteen vears, in one wav or another, have vou not known
many cases where the building operations commenced in the
fall of the year, and were carried on all the way through the winter?
A. Yes sir. it is done in the fall and carried through the winter.
Q. Is it not of frequent occurrence, Mr. Gregg? A. Well, I sup¬
pose it is of frequent occurrence but it is done with a great deal of
risk.
Q. You said that you did not believe that the concrete work, the
topping of which had scaled off as a result of freezing, could be re¬
surfaced successfullv : that was the substance, if not exactlv what vou
said, as I understood it. Have you ever attempted it yourself? A.
To resurface, do vou mean?
Q. Yes? A. No sir.
Q. I mean concrete that has been frozen, or injured by freezing?
A. No sir: I have never attempted it myself.
Q. Do you consider yourself an expert in concrete work? A.
Well, I would not call myself an expert in concrete work, although
T have seen a good deal of it.
Q. Can you give us an instance, within your knowledge, where
retopping and resurfacing of concrete work has been attempted and
TRUSSED CONCRETE STEEL COMPANY.
121
made necessary because of the freezing, in addition to the old
201 work which proved to be a failure? A. Yes sir, I can, but
it is not in this city.
Q. Where is it? A. Tt is in the city of Baltimore.
Q. What is the place? A. The sidewalk opposite the new cus¬
tom house. The topping was frozen and it was refinished, and in the
end they had to take up the whole thing and do it all over from base
up.
Q. Can you give us an instance where the concrete work to be done
was in a building? A. I cannot.
Q. So that when you gave it as your opinion, or judgment that
that retopping or resurfacing could not be successfully accomplished,
it was based upon vour observation of this sidewalk in Baltimore?
A. Tt was based upon the observation of the sidewalk work and the
opinion of parties who are very familiar with concrete construction.
Q. So that your opinion is based, in part at least, upon the opinion
of others, and not upon your own knowledge of the subject? A. In
that particular respect, yes sir.
Q. Supposing a building is in course of construction, and the
walls are going up. and during tin* night freezing weather comes on,
will the effect of that upon the damp mortar, laid the day or night
in which that frost appeared, show itself the next day? A. Not
always.
202
Q. What is the aspect of the mortar that has l>een frozen
over night, T mean damp mortar that has been laid and then
frozen? A. It becomes just like powder. You can stick a penknife
in it; there is no tenacity to it.
Q. Supposing that mortar was damp, having been laid in the day¬
time and that night frost comes on and the mortar is frozen, and the
next day the building is examined, this powdery condition of the
mortar will be observable, will it not? A. Not immediately, no sir.
Q. When will it be? A. There is no fixed time for it.
Q. So that you can never tell—one never knows when the freez¬
ing has taken place, certainly? A. Not within any limited time.
Q. So that you might have freezing of that kind and it would not
be at all observable on the work, and the work would go on and it
might be some time after it was completed that the effect of the
freezing of* the mortar would first exhibit itself? A. It is very
possible, yes sir.
Q. There is no way of telling; unless this powdery appearance,
which you have mentioned, makes its appearance there is no way of
telling that the mortar has frozen? A. T do not think so.
Q. How many months elapse before the results of the
263 freezing exhibit themselves? A. Yes sir; that is possible.
It was mutually stipulated and agreed by and between counsel
for the respective parties that the signature of the witness to the
foregoing deposition should be waived, and the same signed by the
Examiner, which is accordingly done this 17th dav of December A.
D. 1908.
ALEXANDER H. GALT,
Examiner in Chancery.
122
FIDELITY STORAGE CORPORATION ET At. VS.
IIenry M Lanford, a witness produced for and on behalf of (he
defendants, having been first duly sworn, testified .as follows:
By Mr. Clepiiane:
Q. Where do you reside? A. At No. 231 Mas*. Avenue Northeast.
Q. How long have you lived in Washington? A. Seventeen
vears.
Q. What is your business? A. I am in the reinforced concrete
business.
Q. How long have you been in that business? A. I have been in
business for myself since the first of last March.
Q. Prior to going into business for yourself, how long were you in
the reinforced concrete business? A. About two vears.
204 Q. During that time what experience have you had in
that line of work? A. Well, I was superintendent and gen¬
eral foreman for Dill Brothers on several buildings f
A. In reinforced concrete work? A. Yes sir.
Q. Have you had occasion to examine the storage warehouse of
the Fidelity Storage Corporation at 1410 V Street Northwest in
this city? A. 1 have: 1 went up there to give an estimate on the
work. I only saw one floor, either the eighth or ninth floor, I do not
remember now which.
Q. What was the condition of that floor as you observed it? A.
All the surface, the topping, was pretty nearly all of it gone.
Q. Can you tell about how much of it was gone? A. All that 1
saw in the hall as T walked down between tin* rooms was all worn off.
Q. You did not go into any of tbe rooms then? A. No sir. I
did not go into the rooms. T just walked down the hall.
Q. How far down did that scaling go? A. About 7/ s of an inch
or an inch apparently.
Q. Do you know what it would cost to retop that concrete work?
A. Well T could give you my figure at $1 00 a yard.
20.*> Q. In vour judgment is that a fair and reasonable esti¬
mate for that kind of work? A. Tt is very reasonable be¬
cause we would have to pick that ol<l stuff off. and it would cost
pretty near as much to do that. I suppose, as it would to put down
new stuff.
Q. When you put down now stuff would you be able to guarantee
that it would stick? A. Well. no. We cannot hardly guarantee it.
While I have had some good results from it. I have had some bad
results from it.
Cn tss-exami nation.
Bv Mr. Snrooxs:
Q. Mr. Lanford. you say you have been three years in the nan-
forced concrete business? A. Yes sir.
Q. Three years from the present time? A. Yes sir.
(). You began then vour work of experience in 100.“). sometime?
A. Yes sir.
Q. When did you see this building? A. It was about 10 days
ago, I guess.
TRUSSED CONCRETE STEEL COMPANY.
123
Q. That was (lie only occasion? A. Yes sir.
Q. Then you went up at Mr. Karriek’s request. A. No
sir.
2b'i (j. This gentleman who was just on the stand, you mean?
A. Yes sir. I am doing some work for him now, or rather
he h the architect for the building I am working on right adjoin¬
ing.
What do you mean by reinforced concrete? A. It is concrete
that is reinforced with steel.
Q. Take the floors of this building, or the floors of this building
that you saw: what part of this is reinforced with steel? A. The
floors of course I never noticed all of it, and I judge it is reinforced
all till' way through the floors.
Q. I wMi you would describe reinforced concrete steel construc¬
tion of a floor.
Mr. Clkpiiane: This line of examination is objected to as not
being ero*s examination, and if persisted in, counsel will insist that
counsel for the complainant make* the witness his own.
A. i here are different reinforcements.
tj. Can you descrilie the character of the reinforced steel construc¬
tion of a floor that you saw at this building? A. No sir; I do not
know whqt went in it. I do not know how thick the floor slabs are or
how heavy the beams are either. That is something that no one
could say. unless they were there and saw what went in, the char¬
acter of a floor, or how much reinforcement was needed. They
could just describe simply from the appearance of it, the
2fl7 character of the work, hut they could not tell how much steel
was in it. how much reinforcement.
(j. Now when you are engaged in this work of reinforced con¬
crete steel, is it vour practice to put in the same svla< of concrete?
A. Yes sir.
(>. Where have von attempted to restore a surface of reinforced
concrete steel work, where the original surface has been damaged by
fro-t? A. I never had any, except a place as big as this desk that
was damaged by frost: that was at the Burdorf stable.
Q. 1 am only speaking of where the damage was done by frost.
A. Well, I had a place about as big as this table; that was the only
place that ! had to cut out.
(J. And you cut that piece of surface out and repaired it with an¬
other surface, that is, another topping? A. Yes sir.
(}. Did you do it? A. Yes sir.
Q. When did you last see it? A. I have not seen it since about a
week after it was done.
(}. Are there any other cases where you retopped or resurfaced as
a result of the free-ing of the original surface? A. No sir.
Q. Have you ever seen any new surface that has been put
2flS on to cure or overcome the effect of the freezing of the origi¬
nal surface? A. No sir.
Q. Did you make any examination of the character of the con¬
crete that is on the floor, that you saw on the floor of this building
when you went up to make the estimate? Did you know the in-
124
FIDELITY STORAGE CORPORATION ET AL. VS.
gredients? A. No sir. I <li<* not. I only looked in about two places.
It was ri«2.1it down at the base of the concrete. All the topping was
gone in the two places that 1 examined.
Q. And what, as an expert in such matters, should a good topping
consist of? A. A good topping is one part cement and two part-
sand.
Q. Is it good work to put broken brick in? A. No sir.
Redirect examination.
Bv Mr. Cleimiane:
Q. You could not put broken brick in a topping, could you? A.
No sir, I think not.
IIENRY M. LANFORD.
Sworn to and subscribed before me this lb"
1908.
ALEXANDER
dav of December.
«/
II. GALT,
Examiner.
269 Chaki.es 8. Hilbert, a witness produced by and on behalf
of the defendants, having been lirst duly sworn, testified as
follows:
Q. W here do you reside? A. At 1606 Fifth 8t. N. \Y.
Q. How long have you resided in the District of Columbia? A.
About 21 veal’s.
«.
Q. What is your business? A. Sign painter.
Q. How long have you boon in the business of sign painting? A.
about 20 vears. since 1888.
«
Q. Have you had occasion to examine the signs on the East and
West walls of the building of the Fidelity Storage W are House at
1410 C St., in this city? A. Yes sir.
Q. With what object in view? A. Repainting them.
Q. What would be the expense of repainting those signs? A.
$226.00.
Q. Is that a fair and reasonable estimate for that kind of work?
A. It is. Yes sir.
Cross-examination.
Bv Mr. Siddons:
Q. W hen did you make the estimate? A. I would say a
270 week ago or two weeks ago?
Q. Did you ever see these signs before that? A. Yes sir.
Q. When? A. I sort of noticed them when they were put up
there.
Q. Did you notice their condition then? A. W T hen they were
put up?
Q. When you first saw them? A. Yes sir: they looked all right.
(}. When did you say they began between that first time and
when you went up to make the estimate? A. I could not say; I do
TRUSSED CONCRETE STEEL COMPANY. 126
lots of work up ill that locality and see them every time 1 go up
there.
Q. You figure that the whole of the sign will have to he repainted?
A. Yes sir.
Q. Your estimate is based on reproducing the signs? A. Yes sir;
you could not do anything hut reproduce them.
Q. Did you observe anything there to make it difficult to repro¬
duce them, or repaint them and make new signs? A. No sir.
Q. The condition of the walls would not prevent you from doing
it, would it? A. No sir, I do not think so.
*271 Redirect examination.
By Mr. Clephane:
Q. What was the condition of the wall there? A. Well, the paint
had come oil’ the sign all along, both sides. You could see the courses
of brick all through that is, the joints. You could see that the paint
had come off. You could see the mortar, wide streaks of mortar
through the whole thing which disfigures the sign.
Q. Did you notice whether any of the mortar had come out? A.
No sir; 1 did not notice that, because I did not go up to it.
Recross-examination.
By Mr. Siddons:
Q. Your examination was from the street? A. Yes sir.
Q. But you calculated on the area of the signs? A. Yes sir.
Q. And the quantity of paint that you would probably have to
use? A. Yes sir; I measured them up, by counting the courses of
brick, and then measuring them afterwards.
Q. You did that from the street? A. Yes sir; 1 did all the meas¬
uring from the street.
CHARLES S. HILBERT.
272 Sworn to and subseril>ed before me this 16" day of Decem¬
ber, 1908.
ALEXANDER II. GALT, Examiner.
Without concluding the testimony of the defendant, an adjourn¬
ment was had — to take place at Washington, I). C. Monday Dec.
21, at 1 :30 o’clock P. M.
Washington, D. C., December 21, 1908—
2 o’clock p. m.
Met pursuant to notice at the office of W. C. Clephane, Fendall
Building. Washington, D. C.
Present on the behalf of the complainant in the original bill
Mr. Siddons.
Present on behalf of the Defendants, Messrs. Clephane & Clephane.
126
FIDELITY STORAGE CORPORATION ET AL. VS.
David T. Cissell, a witness of lawful age, called by and on
behalf of the defendants, having l>een duly sworn is examined.
By Mr. Cltcphane:
Q. Please state your full name. A. David T. Cissell.
Q. Where do you reside? A. At No. 1220 11th Street, N. W.,
Washington, I). C.
278 Q. You have resided in Washington for how long? A.
Since 1849.
(). What is vour business? A. I am a bricklaver and builder.
v • •>
Q. I low long have you lieen engaged in that business? A. For
about forty-five years.
Q. What experience have you had in building operations during
that time, generally speaking? A. I have put up hundreds of
houses. 1 can name a few of the prominent ones. I put up the
first flat in Washington, The Portland Flats. I put up the Louise
Home, the Columbia Title Company right below here, and I have
done Government work. I remodelled a part of the Smithsonian
Institute and made it fireproof.
Q. You say that you have built hundreds of buildings in that
time? A. Yes; hundreds of them.
Q. Have you had any occasion to examine the storage warehouse
owned by the Fidelity Storage Corporation at No. 1420 U Street
in this Citv? A. 1 have.
Q. What examination, if any, have you made of that building?
A. 1 went up there and examined it as carefully as I could and as
well as l could. Of course 1 could not get to some of the places on
the outside wall as there were no windows; but I can tell the
271 character of the work by looking at it.
Q. From where did you make your examination? A. I
made it from the roof, one place, looked down from the roof, and
then I made it also from below by looking up.
Q. Did you observe the condition of the mortar in the joints
between the bricks on the east and the west walls of that building?
A. I did. They were more or less affected by cold weather, from
freezing and they have popped out. I examined them and found
that the virtue of the mortar had. more or less, gone out of it,
because of freezing.
Q. What was the effect of that on the appearance of the wall?
A. It was very unsightly: it shows the joints more or less popped out.
Q. To what depth is the mortar out, between these joints? A.
It is right hard to tell how far in those joints are frozen. It may
continue, more or less all the way through to a certain extent. I did
not go in very far; but I have not the least doubt but what they are
affected more or less through the thickness of the wall.
Q. To what extent, in length and breadth of the wall, are those
mortar joints affected? A. The walls, east and west, are about 200
feet long and they are affected more or less for a height of 20
feet.
27o Q. Throughout their entire length? A. Yes sir.
Q. Did you examine the condition of the wall on the in¬
side on the 8th & 9th floors? A. I did.
TRUSSED CONCRETE STEEL COMPANY.
127
Q. What condition did von find there with regard to the mortar?
A. They are more or less affected in the same way, running about
a foot or so above the floors. They seemed to be wors# about a foot
above the floor.
Q. That would be required to put those walls in good condition?
A. To put them in good condition they would have to be raked out
and repointed.
Q. What would be the cost to do that? A. My experience has
been that it takes just about twice as much labor to point up as to
lay the brick, with the exception of the cost of the brick. In this
case it would 1 k‘ worth 1 should say, .$15.00 a thousand, because the
work has got to be done from a swinging ladder or a painter’s ladder,
and we can verv seldom get a brick lavcr to work on those ladders.
Q. How many thousand bricks will have to be treated in this way?
A. I should say about 52,000 brick.
Q. About what would be the entire cost as you calculate it?
270 A. T went into a calculation to see how many brick and so
forth were needed.
Q. What would be the cost? A. I think it amounted to $780.00.
Q. Would that be a fair and reasonable price for doing that work,
on those walls? A. It would to put them in good condition.
Oross-exa m i n at ion.
By Mr. Siddons:
Q. When did you make this examination? A. I made it to-day.
Q. Have you seen the building before? A. I have often passed
there.
Q. 1 mean to examine it and observe its condition? A. No, only
to-day.
Q. This condition on the inside of the wall on the 8th and 9th
floors, which you say is the result of cold and freezing existed for
about a foot above the floor? A. Yes sir.
Q. Is that the case with l>oth floors? A. Both floors, yes sir.
Q. That is the condition on both floors for the distance of about
a foot from the floor? A. Yes sir.
Q. Tt does not go beyond that? A. Not as far as I could see. It
did not go above that on the inside.
277 Q. I am speaking now of the inside. A. Yes.
Q. And that is true of the 8th and 9th floor? A. Yes sir.
Q. Do I understand you to say that you looked over the building
from the roof? A. Yes sir.
Q. Down the side of the wall? A. Down the side of the wall.
Q. And there you observed the same condition for a distance of
approximately *20 feet in width, and the whole length of the wall?
A, Yes; there might have been a few places you know, where it wa«
not in that condition, but it was in such a condition that in order
to make a complete — of it you would have to run the course all
along. You might come to a foot or so where it was not really out;
but I should not say that it existed more or less all over the wall.
Q. T notice you said that it was, “more or less affected,” making
it indefinite in my mind? A. I mean that you cannot tell exactly
128
FIDELITY STORAGE CORPORATION ET AL. VS.
without you go right along and follow the line close with your eye,
because some places look worse than others. There were jogs along
in the wall.
Q. Has the condition which you observed there, which as you
understand it is due to freezing, rendered these walls unsafe
278 to support the structure? A. I would not like to say they
were unsafe; but it certainly depreciates the strength of the
wall.
Q. In your estimate for repairing the conditions that you notice
and to do the pointing up that you have alluded to, you fixed the
cost at *$15.00 per thousand brick; does that mean that the mortar
should be raked out only a part of the way? A. A j>art of the way,
but sufficient to get a good hold for the mortar after you point up.
You would not go all way in.
Q. You could not go right straight through of course? A. No;
but I have not much doubt in my mind but what that freezing has
affected more than the width of a brick. The virtue has gone out of
the mortar, as it were, and when it is frozen once it is never what it
was before.
(J. Mr. Cissell, in your experience a* a bricklayer and builder,
the conditions which vou noted there, were thev due to the mortar
freezing after it had been laid? A. Yes sir.
Q. Is mortar that has been mixed and frozen again used again?
A. Well, it ought not to be really.
Q. But it may be used. A. It may be used by putting lime or
cement in. It virtually goes back to sand, and you just have to add
mortar or lime and cement to make it all right. You can never re¬
store it without putting something in it.
279 Q. Now that freezing condition that you noted there might
have taken place. Could it only have taken place after the
mortar had been laid? A. I do not see how it could otherwise.
(£. How much brick that you noted on the inside of the floor—
the eighth or ninth floor—approximately, how many bricks or joints
of bricks are affected bv the conditions which vou noted on the
eighth or ninth floors/ A. Well, about five courses; I should say
about five courses high.
Q. That is one brick upon the other? A. Yes sir.
Q. When is a frozen condition like that likely to occur after the
mortar has been laid, the bricks put upon top? A. Mortar can
freeze before you put it in the wall, but it is not generally so. You
never find anyone that will take up frozen mortar and put it in the
wall because it goes back to sand, as it were, there is no strength
to it.
Q. How soon after the mortar has been laid, the bricks laid and
mortar used, and freezing occurring, will the evidence of it exhibit
itself? A. Well, not until it thaws. It thaws up, you know, because
it becomes hard, although you can see some effects, if you look at
it closely you will see that there is a kind of icy substance that forms
on the outside, but you do not see the result until the mortar
280 thaws and then pops, as it were, or swells in the course of
time, and it may not drop out right away, but more or less
it does.
TRUSSED CONCRETE STEEL COMPANY.
120
Q. It sorts of disintegrates? A. Yes sir; it disintegrates very fast
for a long time, always really it is like using a loam sand. There is
no strength to it. and its natural age will bring it out.
Q. On the outside of the wall, the condition which you noted—
does that extend from the roof down twenty feet, that is about twenty
feet. A. Yes sir; two stories.
Q. What is the character of the workmanship there that you noted
in the laying of the brick; is it a good job? A. Well, sir, it is a
medium job.
Q. What do you mean by that? A. It is not as smooth as it
might be. hut I should imagine that it was strong hut not as smooth
as I have often seen.
Q. That condition, however, is not ascribed to the freezing; you
do not refer to the freezing in that? A. No sir.
Q. That goes to the workmanship? A. Yes sir.
Q. Now supposing, Mr. Cissell, that this building was completed—
the brick laying, etc., completed in March 190b. The results of the
freezing of this mortal would exhibit themselves next spring
281 when the warm weather set in, would they not?
Mr. Clepiiane: The question is objected to on the ground that
it i~ not in conformity with the evidence in the case.
•/
A. Well, I could not say exactly when that would commence to
disintegrate. It depends upon the weather.
0. 1 say. assuming when warm weather set in that year, if it had
frozen? A. Yes sir. there were the indications of it, A person
might not notice it particularly without their attention being
especially drawn to it, unless it was down low to the eye. I would
have detected it very soon because I would have noticed the joint
being swollen even if it had not dropped out. Just as soon as it
thaws, or it is warm enough to thaw there would he indications of
it being frozen and disintegrated.
0. Now supposing that condition results, that is of the freezing,
and made its appearance in warm weather, of 1900, when would-be
the best time for curing it, at once, or if not treated properly in the
manner that you have indicated it gets worse, does it not? A. Well,
some of it, yes sir. It goes to waste just like bad mortar, naturally
the longer it stays. It has not the strength it had before, and it
just crumbles.
Q. So that good treatment, from the standpoint of a builder, a
good bricklayer, like yourself, not pointing up that you suggest
ought to have been done as soon as it was ascertained that that
282 condition was there? A. Well sir, I do not think that a
little time would make any different.
Q. What do you mean by a little time? A. Well, if it is in bad
condition—well. I do not suppose six months, but it is more or less.
Of course, the sooner it is done after the frost gets out the better.
Q. It is less expensive if done properly, is it not? A. I do not
know what it would cost. When you come to the joint you find
that it is rotten.
9—2057a
130
FIDELITY STORAGE CORPORATION ET AL. VS.
Redirect examination.
Bv Mr. Clephane:
*
Q,. Did you find jany indication in the mortar of this building
so far as you observed, or as you observed the mortar, that it had
been frozen before it was put into the wall? A. No sir.
Q. Did you find any condition of that poor mortar being used?
A. Well, it had a portion of cement in it, I can very well tell about
the mortar being poor after it has been frozen once because the virtue
has gono out of it.
Q. So it would be impossible for you at the present time, or for
anyone else, to really tell what the character of mortar was when it
was put in that wall, as I understand it? A. Well, you could
*283 not well do it. Of course you can detect some little defects
in mortar, in most any mortar you can probably see a little
defect, probably in the lime. Sometimes lime may be a little de¬
fective, and you may in gouging a joint out like that, see little specks
of lime, and yet it may be all right.
O. But vou could not tell whether or not the mortar was frozen
before it was put into the wall? A. Well, no; I could not tell
that because it could not have been, I think, before it was put in
the wall. No doubt the mortar was frozen after it was put in the
wall.
Q. You did find, however, that there was cement used in the
mortar as I understand? A. Yes sir.
Q. Could the popping occur after the freezing occurred, unless
the mortar was put in the wall? A. Could the popping?
Q. Yes, the popping of the mortar in the joints; could that occur
unless the freezing occurred after the mortar was put in the wall?
A. No sir.
Recross-ex animation.
By Mr. Siddoxs:
Q. Mr. Cissell, what do you mean that you found, that you ob¬
served some cement in with the mortar? A. I could tell from the
indications of the mortar that there was cement in it.
284 Q. What is the effect of cement in mortar? A. It has a
tendenev to harden it?
Q. Is it good treatment, or is it good mixture, or is it good work¬
manship to put cement in the mortar? A. Oh yes, it is calculated
to make it stronger. That is why it is put in—a portion of cement
in lime mortar; of course it benefits the mortar, and not only that
but in a general way it sets quicker, and it is not so liable to freeze.
0. You did not examine any of the mortar that has fallen out
to see the character of the mortar, did you? A. Yes sir; some of
the mortar seemed right hard. After it froze, you see, some of it
was hard.
Q. What kind of mortar would you say was used there? A.
What we call cement mortar. When we speak of cement mortar
we mean portions of cement and lime mixed, but in specifying the
kind of mortar in buildings, if it is all cement, they say it is cement
TRUSSED CONCRETE STEEL COMPANY. 131
and sand mortar ; but when they say cement, or cement mortar, we
take it that there is a portion of lime to go in it.
DAVID T. CISSELL.
Sworn to and subscribed before me this 21st day of December
1908.
ALEXANDER H. GALT,
Examiner in Chancery.
285 Without concluding the testimony for the defendant-, an
adjournment was taken to meet Monday, December 28, 1908,
at 2:00 P. M.
Washington, D. C., Pec. 28, 1908.
Met pursuant to adjournment at the office of Walter C. Clephane,
Esq., Fendall Bldg., Washington, I). C., at 2:00 o'clock P. M., for
the purpose of resuming the taking of testimony on behalf of the
defendants in the above entitled cause.
Present : On behalf of the complainant in the original bill, Fred
L. Siddons, Esq.
On behalf of the defendant, James L. Karrick, Walter C.
Clephane, Esq.
James L. Karrick, was thereupon recalled for further direct
examination.
By Mr. Clephane;
Q. I hand you two letters, dated Pittsburg, Pa., Aug. 23 and Aug.
20th, respectively, 1905, signed in the name of the Trussed Con¬
crete Steel Co., bv Louis Kahn, (W. R.). I will ask you whether
vou ever received these letters (handing them to the witness)? A.
I did.
Q. When and under what circumstances? A. In the usual course
of business, about the dates that they were dated.
280 Q. I also hand you a letter purporting to he signed by the
Trussed Concrete Steel Co., A. Gregory, purporting to come
from Detroit, Michigan, under date of Nov. 11, 1905. (Handing
witness said letter.) I ask you whether you ever received that letter?
A. I received that letter.
Q. Where and when and under what circumstances? A. In due
course of business at my office, 1333 G Street, N. W.
Mr. Clephane: These letters are offered in evidence.
The same are marked, respectively, Exhibits A. II. G. No. 1, 2
and 3.
The same are as follows:
Pittsburg, Pa., August 23, ’05.
Mr. Jas. L. Karrick, Washington, D. C.
Dear Sir: Answering yours of the 22nd. We beg to advise that
car mentioned in your letter was delivered to the P. & E. Ry. at
132
FIDELITY STORAGE CORPORATION ET AL. VS.
Williamsport. Pa. on the 17th inst., which is last record of car.
We have tracer after same and will advise you of forwarding.
Very truly yours,
TRUSSED CONCRETE STEEL CO.
LOUIS KAI1N.
W. R.
287 Pittsburg, Pa., August 26, ’05.
Mr. Jas. Karrick, Washington, D. C.
Dear Sir: With further reference to steel for Karrick Warehouse,
advise that car containing steel passed Marysville, Pa. 21st inst.
Very truly yours,
TRUSSED CONCRETE STEEL CO.
LOUTS KAHN.
W. R.
Detroit, Mich., Nov. 11, 1905.
Mr. James L. Karrick, 1333 G St. N. W., Washington, D. C.
Dear Sir: We regret to learn from your letter of the 9th that
steel for the eighth floor and also shipment of Oct. 6th have not
yet been received. We have asked Pittsburg to wire another tracer,
and assure you that we will lose no effort in tracing shipment through
to destination.
We thank you for instructions on the ninth floor and will be
governed accordingly.
Very truly yours,
TRUSSED CONCRETE STEEL COMPANY.
A. GREGORY.
Mr. Siddoxs: I reserve the right, of course, to verify the accuracy
of the letters.
288 Q. I hand you what appears to be a telegram from the
Trussed Concrete Steel Co. to you, dated Sept. 25, 1905, and
ask you whether you ever received that telegram (handing message
to witness). A. I did.
Q. Where and under what circumstances? A. About the same
date, at my oflice.
Q. And underneath that telegram there appear to be some pencil
memoranda. Can you tell who made those memoranda? A. Yes
sir, that is my writing.
Q. Whv was that done? A. It was a draft of a letter or tele¬
gram to Mr. Smith.
Q. What Mr. Smith? A. Mr. Layton F. Smith.
Q. Was such telegram ever sent? A. It was; either a telegram
or a letter. I cannot recall now which it was.
Q. Was the letter or telegram to which you have just referred,
and of which you say this pencil memoranda is a copy, sent before
or after the receipt of the telegram on the same blank from the
TRUSSED CONCRETE STEEL COMPANY. 133
I
Trussed Concrete Steel Co. to you? A. Tt was sent the same day,
just after the receipt of the telegram from the Trussed Co.
Mr. Clephane: This telegram and the answer to it are offered in
evidence.
The same are marked respectively Exhibits A. H. G. Nos.
289 4 and 5.
Thev are as follows:
*******
Mr. Sinnoxs: Counsel for the Trussed Concrete Steel Co. inquires
of counsel for the defendants whether this pencil memorandum on
this telegraph blank is placed on the letter or telegram called for
in the recent notice?
Mr. Clephane: It is.
Q. I offered in evidence when you were on the stand the other
day, a contract between you and the Fidelity Storage Corporation,
relating to the building of this warehouse, and the offer was ob¬
jected to upon the ground that the authority of Mrs. Karrick, who
signed the contract on behalf of the Storage Corporation, was not
shown. I will ask you whether you ever attended a meeting of any
gentlemen interested in the Fidelity Storage Corporation at which
the subject of this contract was discussed? A. I did.
Q. Do you recall the date of that meeting? A. I do not.
Q. Could you recollect by referring to the minutes of the Cor¬
poration? A. Yes sir.
Q. 1 hand you a blank book, which appears to contain certain
writing, and ask you to identify that, if you will?
290 Mr. Siddons: I object to the proposed proof of the minutes
of the defendant Storage Corf>oration by the witness. He is
not its custodian.
A. This is the minute book of the Fidelity Storage Corporation
(producing a book).
Q. I will ask you to look at page 11 of that book and state whether
the entrv there in any way refreshes vour recollection as to the date
of the meeting to which you have testified? A. It does. It gives
the date May 3, 1905.
Q. Do you recollect now if that was the date of that meeting? A.
It was.
(). Who signed those minutes? A. Henrietta B. Karrick, Sec¬
retary.
Q. What office did she hold in the Fidelity Storage Corporation?
A. Secretary of the Corporation.
Q. What body of this Fidelity Corporation met on that date?
Was it a stockholders’ meeting or Board of Directors’ meeting? A.
Board of Directors.
(). Do you recollect distinctly what occurred at that meeting with
regard to the passage of a resolution authorizing anybody to sign
this contract? A. In a general way.
Q. State without reference to the minutes just what occurred at
that Board of Directors’ meeting?
134 FIDELITY STORAGE CORPORATION ET AL. VS.
291 Mr. Siddoxs: I object to the obvious intent to prove the
action of the directors of this corporation in an incompetent
manner. The minutes are the best evidence and are supposed to be
in the witness* hands.
A. The contract was entered into by the corporation with myself
to erect a warehouse. The Secretary was empowered to sign the con¬
tract.
Q. Who was the Secretary at that time? A. Henrietta B. Kar-
riek.
Q. I believe you have already stated that the minutes in that book
were signed by Henrietta B. Karriek? In whose handwriting are
those minutes? A. In her handwriting.
Q. In whose custody has that minute book been? A. In her
custody, until I got it to bring down to this office.
Q. When was that? A. Two or three weeks ago.
Q. Was it before or after you were on the stand before? Was
it before or after Mr. S'iddons made the objection that this contract
could not be offered in evidence? A. It was after that.
Q. Now do you know whether or not that record contains a true
and accurate copy of the proceedings of the Board of Directors? A.
Yes sir.
Q. And of such stockholders’ meeting as it purports to contain a
record of?
292 Mr. Siddoxs: My objection goes to all such evidence as a
means of proving the corporate action, or the identity of the
minute book in question.
A. It does.
Q. Where is Mrs. Henrietta B. Karriek? A. She is at home,
confined to her house. She is ill. and has been for nearly five weeks,
confined to her bed for about five weeks.
Q. Is she able to testify in this case? A. Not at the present time.
Q. Is she able to have her deposition taken at her house? A. I
should say not. Her physician could answer that better than I
could.
Q. Has she been able to see anyone at all? A. No sir; she is
not allowed to see anybody except the immediate members of her
family.
(Minute Book referred to is marked for identification “Exhibit
Minute Book.’’)
Mr. Clepiiaxk: This minute book is now tendered to counsel for
the Trussed Concrete Co. for examination, if he decides to see it.
Mr. Siddoxs: Counsel for the Trussed Concrete Steel Co. does
not understand that counsel for the defendant Karriek offers the
minute book in evidence.
Mr. Clepiiaxe: No sir; I do not.
Mr. Siddoxs: I therefore renew my objection to the testimony of
the witness tending to prove corporate action in the manner
293 here intended, and the minute is produced by the witness
who testifies it is the minute book of the corporation and I
TRUSSED CONCRETE STEEL COMPANY. 135
Will move to strike out all of tlie defendants testimony tending to
prove the corporate action in the manner undertaken.
Q. Let me ask you whether at any time in your recollection any
resolution was ever passed by the Board of Directors of the Fidelity
Storage Corporation requiring the deduction from the contract prices
otherwise due you of the $25.00 deduction for each day’s delay be¬
yond the contract period.
Mr. Siddons: The question is again objected to on the ground
that it is fully an improper manner of proving the corporate action
alluded to in the question. If there are such coq>orate action the
minute hook presumably would contain the record thereof, and the
testimony of the witness or the testimony sought to he obtained
from the witness is therefore secondary evidence and objected to on
that ground; and also, that the question is a leading question.
A. 1 will answer the question, yes.
Mr. Clepiiane: In view of the objection that the question is lead¬
ing, 1 will withdraw it for the present.
Q. I ask von now this question: Do you recollect whether or not
at any time the Board of Directors ever took any action upon the
deduction by the Fidelity Storage Corporation of $25.00 per day
for each dav’s delav bevond Nov. 15th?
• i. i
Mr. Siddons: The question objected to on the ground that
204 it is an improper mode of proving corporate action, when
presumably there was a record made of such resolution, if
adopted by the directors in the minute hook which the witness has
produced, and testimony sought from him is therefore secondary
evidence and objected to on that ground.
A. There was such action.
Q. State what you recollect of that action?
Mr. Siddons: It is understood that counsel for the Trussed Con¬
crete Co. objects to this whole line of inquiry upon the ground al¬
ready stated in the objection to the preceding question.
Q. 1 would like to have you state what action was actually taken
in that regard? A. The officers of the company were directed to
deduct $25.00 a day for the delay in finishing the building from
Nov. 15th from the amount that would otherwise have been due
me under the contract.
Q. I hand you a package of papers and ask you to identify those,
if you can? A. These are part of the plans of the Fidelity Storage
Co. building.
Q. What part? A. Here is a plan of the front elevation. Do you
want each one of these identified?
Q. Yes, you had better do it. A. Plan of the 1st floor. The sec¬
tional plan. Plan of the steel vault. Detailed drawing of the front
cornice and part of the front of the building. Those plans
were furnished by the architect.
Q. Who were the architects? A. Beecher, Friz & Gregg.
205
136
FIDELITY STORAGE CORPORATION ET AL. VS.
Now hero is a plan furnished by the Trussed Concrete Steel Co.,
showing the method of placing the steel in the foundation of the
building. Working details for the floor system furnished bv the
Trussed Concrete Steel Co., showing how each bar of steel should be
placed in the floor. Those are all that I have.
Q. Are there any plans which you have and which were furnished
you, either bv tin* architect or bv the Concrete Steel Co. which vou
• • • •
have not produced? A. Yes sir; there should be a plan furnished
bv the Steel Co. of the roof. 1 have not been able to find it. It is
somewhat different from the floor plan.
Q. Have you made diligent search for it? A. Yes sir: I have;
and there is a plan for the stair work which 1 have not been able
to find.
Mr. Clepiiane: 1 offer those plans in evidence.
(The same are marked respectivelv. Exhibits A. II. G. Nos. 0, 7,
8 and 0, 10, 11, 12. 13, 14. 15 & 10.)
The Witness: 1 think those were all the plans furnished by the
Steel Company. There are one or two plans of the architects that
T have not been able to find.
Q. Have you made diligent search for them? A. Yes sir.
Mr. Clepiiane: T now renew mv offer of the contract which was
offered at a former session relating to the building of this
200 storage warehouse, entered into bv the Fi deli tv Storage Cor-
poration with Mr. Karrick.
Mr. Sinnoxs: Counsel for the Steel Co. objects to the offer upon
the grounds heretofore stated, that there has been no competent evi¬
dence tendered to prove the authority for the execution of the con¬
tract. and that the plans and specifications mentioned therein had
only been produced in part.
Mr. Clepiiane: I understood you to say when you were last on
the stand, that the Fidelity Storage Corporation had certain by-laws.
Will you produce those by-laws? A. They have no by-laws.
Q. Then were you mistaken? A. Yes sir; if 1 made that answer.
T did not understand the question.
Q. Did thev ever have anv bv-laws? A. No sir.
Q. The contract called for the completion of this building by
Nov. 15th. Would it have been possible to have completed the build¬
ing on that date? A. Tt would.
Q. What makes you think so? A. I know it from experience in
putting up buildings.
Q. Give the court the benefit of such data as you may have to
indicate that it could have been completed by Nov. 15th? A. The
simplest way perhaps is to state that we put on the floor and
207 the brick work for the next floor in ten days after we got the
steel. But even allowing a little longer time than that for
each floor we could have easily completed the building by Nov. 15th.
or before that.
Q. A"ou have stated that the building was actually completed
about the 25th day of January. Will you look at the time books
TRUSSED CONCRETE STEEL COMPANY. 137
which have been identified here, and state whether you are familiar
with those time books? A. I am familiar with them.
Q. Did you have anything to do with making any of the entries
in them? A. I made some marks in them each week.
Q. What marks? A. Most of these marks where the figure set
opposite each name is crossed off. I was present when the men were
paid, and when eaeh man got his money that was my method of
checking off the payment.
0. Is there anv wav bv which vou can tell bv anv memorandum
^ *' */
on those time books when the building was completed? A. Yes sir.
Q. What? A. The roof was completed Jan. 25th.
Q. TTow do you tell that from the time books? A. I can tell that
from the class of men that were working on the roof.
Q. Be a little more specific, if you please. A. T can tell in part
this way. During the week ending January 19th, we had 26
298 concrete workers. They worked three days in that week.
Q. The week ending January 19th? A. Yes sir. They
were laid off the last three days of the week. This refreshes mv
• •-
memory so that T know we worked this large gang of conereters when
we had a large surface to work on and when the main roof was fin¬
ished, which would bo Wednesday, Jan. 16; that was when the main
roof was completed. Then we worked a small gang of bricklayers,
putting on the two penthouses. We worked a small gang because
there was a small area to work on. As soon as the bricklayers had
the penthouses finished in the week ending January 26. we put on
a force of conereters to put the roof on these penthouses. We worked
as many men on those penthouses as it was possible to work, and that
week we had 13 men working in concrete.
Q. Was any portion of this stucco on the front of the building
damaged by freezing? A. Tt was.
Q. Do you know what portion? A. Some of it is damaged there
now, some of the stucco on there now. Some of it, a snail portion has
fallen off, and a small portion has cracked and looks as if it was
ready to fall. Tn addition to that, at the time I put in my cross
bill. T forgot to say that part of the stucco was frozen, and we dis¬
covered that and took it off and put it on again.
Mr. Sinnoxs: This testimony is objected to, first if my recollec¬
tion serves me correctly the witness has already testified to this
299 when on the stand heretofore; second, if any damage is done
it is not included in the claim he is making here against the
Trussed Company.
Q. What did it cost you to do that work? A. Which do you
mean; which work?
Q. Replacing this stucco in front. A. The part that we did re¬
place cost about $25.00 for labor and perhaps $10.00 for material.
Q. How did that compare in point of size with the portion which
is included in vour cross bill and itemized statement of demand
filed in your cross bill? A. As near as I could tell it would be about
one-fourth in area of the amount that is now damaged.
Q. What sort of mortar was used in that building? A. Lime
mortar, tempered with Portland cement.
138
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Why was it that you put those signs up on the east and west
walls before finding out whether the mortar covered by those signs
had been subjected to freezing? A. At the time, we did not know
that the mortar was damaged to such an extent that it would fall out.
Q M ould not the result of freezing become very apparent as soon
as tin* freezing took place? A. Not in every case. If the mortar
was partly set at the time it froze it might not show for sometime.
Q. You say “sometime.” What do you mean by that? A. Per-
haj>s three or four months; sometimes several years.
Q. Have you ever known of cases where the results of freez-
300 ing have not been apparent for several years? A. Yes sir; on
this same building. I cannot answer that exactly that way.
On this same building there are now mortar joints damaged which
have n<*t yet fallen out. but they are damaged so that you can scrape
them out with your finger. But from the ground that would not
be apparent. Tt is just beginning now in some places to show the
damage.
Q. Referring again to the concrete which you say froze ou the 8th
and 9th floors, have you ever attempted up to this time to resurface
that concrete? A. No.
Q. W by is it that the strip on tin* inside of the walls on the 8th
and 9th floors which you say is damaged is only a foot high? ITow
do you account for the fact that the freezing did not extend for any
greater distance than about one foot throughout these walls? A. It
is difficult to give an exact answer, but my opinion is that the rain
and snow that fell on these floors spattered up on the walls part way
and made the walls very wet. and more damage would be caused by
freezing.
Mr. Sinnoxs: 1 he question and answer are objected to ;is a mere
surmise on the part of the witness. There is no evidence that there
was any such condition there.
Witness: It did rain and snow fell on those floors. Perhaps I
could put it that way.
Q. How frequently did it fall during the construction of
301 the building? A. I could not answer how many times it
fell, but it snowed a great many times.
Q. Hid it ra-n or snow while the wall which incorporated that
particular strip was being constructed? A. Yes sir, before the mor¬
tar set.
Q. Referring again to the concrete plant, or the concrete mixer,
and the hoisting engine which you say you had on that building,
how do you get at your estimate of $9 a day as stated in your cross
bill as being the amount of damage to which you were subjected?
Mr. Sinnoxs: Objected to as already testified to by the witness,
and counsel for the Steel Company moves to strike out the question
and answer.
A. I was offered $9 a day for the use of the plant.
Q. During that particular period? A. During that period, with
the promise that it would be in use four to six months.
Q. I notice on page 26 of your testimony as it was written up
TRUSSED CONCRETE STEEL COMPANY.
139
that in answer to my question as to the manner at which you arrived
at the extra half set of forms which you were obliged to make, you
stated in two places that certain portions of the forms contained,
12,000 feet of lumber which would be worth $240.00. I wish you
would look at that report of your testimony and state whether or
not that is correct? A. That 12,000 feet contained in the top and
bottom stringers, was an error. This should be 6,000 feet, for
302 the half set of forms.
Q. In both places or one place only? A. That is only one
place, referring to that one lot of lumber. Now here below
is a reference to struts or studding which is also figured at 12,000
feet. That should be 6,000 feet. I made an error by figuring the
total area of the building. 1 should have halved the quantity. The
other items I did halve properly, but these two I did not.
( l . On page 38 you speak of having used 150,000 ft. of lumber
in those forms. Have you any correction to make in that regard?
A. That amount should be 250,000 feet.
Q. Referring again to the plans which have been offered in evi¬
dence, and also to those which you sav you are unable to find, can
you tell me whether those plans had ever been submitted to Mr. Lay-
ton F. Smyth of the Trussed Concrete Steel Co.? A. Yes sir.
Q. Do you know whether he examined them? A. He did.
Q. Did he ever express any disapproval of them in any way? A.
.\one whatever.
(}. Some reference has been made in the Trussed Concrete Steel
Co.’s testimony to strikes on your buildings during the progress of its
construction. I wish von would state what the facts are in
«/
303 that regard. A. There were no strikes on the building what¬
ever. I discharged the Union bricklayers that were on the
job while they were laying from the 1st floor, because they got to
drinking beer on the job.
Q. Did you hear Mr. Magrini’s testimony relating to the strikes?
A. I do not recollect.
Q. Was this the only time you had occasion to discharge any of
the workmen there? A. No; I discharged men from time to time.
1 discharged Magrini. and I had a foreman of bricklayers I dis¬
charged all for drinking. At various times I discharged men, not
by wholesale, but whenever the occasion arose. If a man was not
competent or was drinking we discharged him.
Q. Was there any time during the construction of the building
that you did not have sufficient workmen to proceed with the work?
A. At no time.
Q. Was there any time during the construction of the building
when because of strikes or otherwise there were no workmen on
hand for any portion of the work? A. Except the time when I dis¬
charged the Union bricklayers. Tt was about three days before I
got a full force of other bricklayers on the job. That was before we
got the 1st floor on.
Q. You say you discharged Magrini? Where were you at
304 the time that discharge took place? A. On the 8th floor,
near the elevator.
Q. What took place between you at that time?
140
FIDELITY STORAGE CORPORATION ET AL. VS.
Mr. Siddons: Question objected to as the testimony is a repeti¬
tion of what the witness has already testified to. and I move to strike
*
out the question and answer, and also move to assess the cost for re¬
peating the testimony.
A. T told him lie was drinking, and he had promised me he would
not drink, and I could not stand having the foreman drinking in
that manner: that he would have to quit.
Q. Did he leave the building then? A. He went down, saying he
wanted his money. I told him to go to the office, and the time
keeper would give it to him.
Q. Did you go with him to the office? A. I did. or very shortly
afterwards. I think I went with him.
Q. Did he have any conversation with you on the subject at the
office? A. We had some words there. He insisted that he was not
drinking enough to do any harm. T told him he was, and I would
not have him on the building, and told the timekeeper to pay
him off.
Q. Where was that? A. On the parking between the sidewalk
and the front of the building.
30f> Cross-examination.
Bv Mr. Siddons:
«
Q. The contract that was offered in evidence in your l>ehalf be¬
tween yourself and the Fidelity Storage Co., the handwriting of that
contract i< it all by the same person? A. It is.
Q. And that is. by Mrs. Karriek who signed it? A. Yes sir.
Q. And she is evidently your wife? A. Yes sir.
Q. Who prepared the contract for its being written up? A. I
think that was done at the time of tin* directors’ meeting.
Q. Who prepared it? A. T cannot recall. It was a composite.
Q. What Mrs. Karriek wrote out and which was offered here in
evidence, was simply a copy, was it not. from the original which was
handed to her for the purpose? A. I think so.
Q. Do you recall who handed it to her? A. T do not recall now.
Q. What other directors or officers besides yourself were likely
to have given it to her to prepare? A. Justice Brewer was present
at that time, and T think he would be more likely to give it
300 to her. I do not recall.
Q. You do not recall whether he did or not? A. No sir, I
do not.
Q. Now at the time this contract was made the Company had not
yet acquired the property upon which the storage house had beei4
built, had it?
Mr. Clephane: Objected to upon the ground that the record is
the best evidence.
A. I think the Company had not acquired it. but had a contract
to acquire it,
Q. And the Company purchased that property from you, did it
not, upon which the building was constructed? A. Yes sir; I pur¬
chased the ground for that purpose.
TRUSSED CONCRETE STEEL COMPANY.
141
Q. You just turned it over to the Company? A. Yes sir; I
bought it for tiie Company. 1 wili not say that, but I purchased it
with the idea of building a warehouse on it.
Q. Where was the Fidelity Storage Co. incorporated? Under
the laws of what State? A. The State of Virginia.
Q. Do you remember when?
Mr. Clkpiiaxe: Objected to upon the ground that the record is
the best evidence.
A. I do not remember the date.
Q. See if 1 cannot refresh your recollection. Was it not the lat¬
ter part of April. 1905?
Mr. Clepiiane: The same objection, and the witness is instructed
that he need not answer unless he knows.
307 Mr. Siddoxs: 1 do not want him to answer if he does not
know.
A. I cannot tell you the date.
Q. Now the officers of the Company when it was incorporated,
were Mr. Justice Brewer, who 1 believe is Mrs. Karrick’s father, is
he not? A. Yes sir; that is right.
Q. And Mrs. Karrick and yourself? Now, were there any other
directors? A. No sir.
Q. Have there ever been? A. No sir.
(J. Did the Fidelity Storage Co. keep books? A. Yes sir.
Q. Did it keep books as early as the date of this contract between
you and it? A. No sir.
Q. When did it begin to keep books? A. After the building
became occupied, after they began to receive storage in the build¬
ing.
Q. It kept then no record of money paid out to you on account
of your contract with it? A. That is all shown in the minutes.
The minute book would be the only one.
Q. Who paid on behalf of the Fidelity Storage Co. the various
bills that were paid in the matter of constructing this building?
A. The payments were all made to me. I contracted to build the
building.
308 Q. By whom were they made on behalf of the company
to you? A. The minutes show that.
Q. No. Do you not know who it was who paid to you? A. The
directors authorized the payment to me of stock and bonds. That
is the way it was paid for. That is the way I got paid for it.
Q. The Fidelity Storage Co. never paid any money out on account
of the construction of this building which you, as contractor, under¬
took? A. Not on the original contract.
Q. Then the penalty that the company enforced against you, how
was that enforced? A. They charged that against my account, I
had the account of some extras which they allowed and some work
that was not in the original contract. Most of this was work required
by the underwriters in order to get the lowest possible rate on the
insurance.
142
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. What form did it take? A. I said they charged that on my
account. We had an open account. After the building was com¬
pleted according to the original contract, I was paid according to the
original contract. I had a bill for extra work which was not called
for in the original contract, and they gave me credit on their books
for that amount and charged me with the penalty.
Q. Who kept those books? A. Those were kept by Mr. Smyth
who testified here.
300 Q. Under whose direction I mean? A. He is the chief
bookkeeper. I am the Treasurer of the Company and he
works under my general supervision.
Q. So that any credits and debits as between you as contractor
and the Company were charged to your account by your direction?
A. On the books they would be charged by my direction, yes sir.
Q. Do the minutes show the action of the corporation penalizing
you?
Mr. Clephane: Objected to on the ground that the minutes are
the best evidence, and the witness need not answer if lie sees fit.
Counsel for Mr. Karrick states that he has the minute book of the
Company here and would be glad to offer it in evidence if Mr.
Siddons will waive the proof of these minutes by Mrs. Karrick under
the circumstances detailed in the evidence of Mr. Karrick.
Mr. Siddons: 1 will cheerfully waive the proof of Mrs. Karrick
of this book being the minute book of the Fidelity Storage Corpora¬
tion.
Mr. Clephane: Then the minute books which has been hereto¬
fore marked for identification “Exhibit Minute Book” is now offered
in evidence.
(The same is marked Exhibit A. II. G. No. 10-A.)
The last question was withdrawn for the time being.
Q. I will show you the minute book which has just been offered
in evidence by your counsel (handing book to witness). Tell me in
whose handwriting that is on pages 1, 3, 5, 7 and 9? A.
310 (After examining said pages.) I do not recognize the writ¬
ing-
Q. You do not recognize it at all? A. No sir.
Q. You do not know when those pages to which I have just drawn
your attention were written in? A. No sir; I can give a guess who
'wrote it, but 1 do not think you want that.
Q. Who is Mr. L. II. Maehen of the Company? A. lie is a Vir¬
ginia attorney in Alexandria.
Q. And a Virginia director? A. Yes sir.
Q. Mr. Karrick. prior to the erection of this building, what build¬
ings have you constructed or supervised in which any system of
reinforced steel concrete was used? A. I never used reinforced con¬
crete at any large construction before this building. I have used
reinforced concrete in steps and in small walls, in quite a number of
cases.
Q. I notice that the deed from you and your wife to the Company
of the property upon which this warehouse storehouse has been
TRUSSED CONCRETE STEEL COMPANY.
143
erected was dated and recorded on ivlay 5th, 1905. At that date had
you begun any work of construction upon the building? A. No.
Q. And can you tell us when you begun excavating for the build¬
ing? A. I think it was shortly after that,
dll Q. Ilow long? A. In May. I cannot recall the exact
date.
Q. Was it the latter part of May, do you think? A. I cannot
recall that.
Q. You have spoken in your testimony several times of the vari¬
ous floors of the building. Let us take the first floor. Did you mean,
when you alluded to these floors, the first suspended floor? A. Yes
sir.
Q. So that wherever you alluded to floors in your testimony you
alluded to the suspended floors? A. Yes sir; I think we should
call it the second floor. It was the first floor in which we put rein¬
forced concrete.
Q. It was the suspended floor? A. Yes sir; on the ground floor.
The concrete was put right on the ground. There was no cellar to
the building.
Q. There is no cellar there then? A. No sir.
Q. Can you tell us from the time hook which you have produced
here when the bricklayers commenced operations on the building?
A. Yes sir, I think so.
Q. I wish you would tell us. A. The first brick was laid in the
week ending June 23.
312 Q. What was that brick? A. The first hrick would he
laying the four corners of the building.
(). Is there any wav bv which vou could tell from those time
hooks anytime when the brick walls were raised to the first sus¬
pended floor? A. I do not think 1 can tell from these time books.
Q. Bearing in mind the statement that the first brick was laid
in the week ending June 23, have you any recollection, or have you
any means of giving us accurate information as to how far they
progressed in the week ending June 23, in the laying of brick? A.
A very small amount in that week. I can tell from the pay roll
only; practically, the corners were laid, the outline of the building.
We have to lav the corners and wait for the survevor to come and
verify the corners. There seems to he an intermission here.
(}. After the surveyor had made his examination when did the
bricklayers recommence? A. They began the Monday of the week
ending June 30.
Q. Can you tell us when they completed the laying of the brick
to the 1st suspended floor? A. I cannot from this hook.
Q. Can you from your independent recollection of it? A. No.
Q. Who superintended the construction of that building?
313 A. I did.
Q. Were you there every day? A. I was there every day.
Q. Can you tell us when you were ready for the first of this steel
contracted for by the Trussed Concrete Steel Co. A. I cannot tell
from this time book.
144
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. I do not mean to confine you to that. A. I cannot from my
memory. 1 might from letters or something of that kind.
Q. Were you ready for any of the steel before July? A. No.
Q. And what was the first steel you required and called for for
the building? A. The first steel went into the foundations.
Q. Where abouts? A. Under the footings.
Q. Is that on the ground? A. No sir; underneath the ground.
Q. That you got in time? A. Yes sir.
Q. Then these brick walls went up? A. Yes sir.
Q. And the next steel was required when? A. When the first
suspended floor was put on.
Q. Now after the walls had been laid for the requisite
314 height of the floor, the steel was then required? A. We did
not wait for all the walls to be laid. As soon as a portion of
two walls was laid we began to erect the false work for the concrete.
Q. You had to be preparing these forms or false work? A. And
set them up. They were already made and ready to set up.
Q. To receive the concrete? A. Yes sir; to receive the concrete.
Q. You could not set them up, however, until at least the wall
had reached the footings or forms for the first suspended floor; it
could not be set up but they could be constructed before the walls
had reached the requisite height? A. Sometimes we did in the
rush set them up a little ahead of the bricklayers.
Q. How did you support them? A. They were supported from
the floor below and then braced diagonally, so that they could not
move. They were not supported from the brick wall at all.
(). Now vou sav you constructed the forms or false work for two
floors at the same time. When did vou construct the forms or false
%/
work for the two floors? A. We made the forms for the two floors.
Q. Complete? A. Yes sir.
Q. Can you tell us at all when you were ready for the steel for the
first suspended floor? A. No, I cannot from my recollection.
31o Q. When were you ready for the second or any subsequent
floor? A. I cannot tell from my recollection, unless I have
something to refresh my memory.
(J. On which floor was it the first delay occurred according to
your claim in the delivery of this steel? A. I think that was on the
4th floor.
Q. When you speak of the 4th floor you mean the 4th suspended
floor? A. No. that would be the 4th floor, counting the ground
as the 1st floor. It would be the 3rd suspended floor, I suppose.
Q. I understood you to say that the first three shipments were
received on time? A. Well, the 1st three shipments were. The
first shipment is the footing steel. We will say the 2nd and 3rd
floor arrived on time.
Q. They would be the 1st and 2nd suspended floors, would they
not? A. Yes sir. There was some delay on the 4th floor proper.
That is where the two shipments came in together.
Q. Do you remember how much delay there was? A. I cannot
recall just how much. I think it was four, or five or six days delay in
TRUSSED CONCRETE STEEL COMPANY.
145
getting the steel, and then the fact that it came two floors in one
shipment delayed us some.
Q. Was any delay in the shipment of the material for the
316 5th floor occasioned? A. I cannot recall the figures. I have
the figures or memorandum, if you want me to refer to that,
but I have not so memorized it so as to tell you without the
memorandum.
Q. Have you any recollection at all as to when you were ready
for the material for the fifth floor, or what I suppose would be the
fourth suspended floor; what time in the summer or fall of 1905
it was? A. I cannot remember the dates.
Q. How long did you allow the concrete to set in these forms
after it had been laid. Take, beginning with the first suspended
floor. In other words, how long did you keep the concrete sur¬
rounded with the frames of false work? A. That depended on the
weather a great deal. In dry hot weather the concrete would set a
great deal quicker than it would in cold weather.
Q. Can you tell us the shortest time that you let those forms or
false work stay? A. We started to take some forms out in ten days.
Whether there was any shorter than that I cannot tell. Let me
explain how we did that. We do not take all the forms out at once.
The forms were planned in such way that we could take out a portion
of the forms and still leave some of these struts under the beams,
and that would be a protection against jarring if the concrete had
not thoroughly set up.
Q. You had no rule then to guide you. You followed
317 or observed no rule in the length of time that you allowed
concrete to set in these forms? A. The rule we used would
be whether the concrete set sufficiently hard to make it safe.
Q. And you determined that? A. No. Mr. Layton F. Smith
came over and I did not remove any forms without his statement
that the concrete was safe. I think after the sixth floor I used mv
own judgment.
CL I notice in the contract with the Trussed Concrete Steel Co.
that they agreed to supply a foreman for you for the purpose of
setting this steel work; but you did not avail yourself of that, did
you? A. They did not supply a man. I discovered this Magrini,
and asked Mr. Smith to talk with him and see what he thought of
him. Mr. Smith decided he was a competent man, and thought
he was as good as any man they could supply.
Q. So tliat you did not employ Magrini until Mr. Smith approved
the selection; is that it? A. I will not say 1 did not employ him,
but I would not have kept him. I only employed him by the day,
and Mr. Smith approved of him and therefore I retained him.
Q. The point is whether the approval occurred before Magrini
went to work or afterwards? A. I cannot recall, but T imagine it
was after he went to work. I think he went to work the next day,
if I remember aright. He was only hired by the day. He was not
hired for any length of time.
318 Q. You advertised for such a man, did you not? A. No;
I do not think I did.
10—2057a
146
FIDELITY STORAGE CORPORATION ET AL. V9.
Q. Now, aside from his drinking of which you have complained,
and for which I understand you finally discharged him; was he an
efficient foreman? A. Yes sir: he was a very good man.
Q. And understood his work? A. I believe so,*yes. Everybodv
has a chance to learn something. I do not think he knew everything
about concrete, but he was a good man, as good as you would find
in a foreman looking for a job like that.
Q. I suppose from your lack of knowledge on that particular
subject you were governed from July by Magrini’s ideas, were
you not?
Mr. Clephaxe: Objected to. on the ground that it is not based
on the evidence in the case.
A. I did not say I had a lack of knowledge of the business.
Q. I am speaking of this system of trussed concrete steel. A. I
do not understand that Magrini hud such a very large experience
in reinforced concrete, lie had a great deal of experience in con¬
crete work, and 1 had a great deal of experience in concrete work.
I think I built the first concrete work in this citv. I have been in
the concrete business for a great manv years, not in reinforced con-
crete business using steel.
319 Q. Rut the necessity of having some one who was to some
extent, at least, familiar with the installation of such a
svstem. was recognized bv vou at the outset, was it not? A. I do
not think I understand that question. I recognized the fact that
any foreman of any particular kind of work should have some
experience, but Magrini had never had any experience with this
particular kind of reinforced concrete, this form of steel. There
are a great many different forms of steel that go into reinforced
concrete.
Q. In your contract, however, with the steel company it was in
contemplation optional no doubt, but it was in contemplation that
a foreman to supervise the installation of this system should be sup¬
plied by the concrete company, was it not?
Mr. Ci.epiiane: Objected to on the ground that the contract itself
is the best evidence.
A. I understand it was so, if I required a foreman that they were
to supply one.
Q. Rut you did not. A. I did not require one from them. I got
one that I considered a competent man.
Q. What was the necessity for consulting Mr. Layton Smith about
the efficiency of Mr Magrini? A. Recause Mr. Smith had had a
great deal of experience in reinforced concrete work, and 1 went a
good deal by bis judgment. I consulted with him about the manner
of the forms that we contracted and took his advice on-
320 Q. (Interposing.) I am speaking now with reference to
your employment of Magrini. What was the necessity of
consulting Mr. Smith as to whether you should employ Magrini as
foreman of this work? A. I do not know that there was any neces¬
sity. I wanted the benefit of his advice.
TRUSSED CONCRETE STEEL COMPANY.
147
Q. Was it with reference to the character of work that was going
to be done under this contract with the steel company? A. Yes
sir; I suppose so.
Q, Did you have any other reason but that, that you wanted a
man that could supervise the installation of such a system as you
had contracted to put into this warehouse? A. Well, put it this
way. A man who had sense enough to do what he was told to do,
would be the way I would put it; not to supervise it. I was there to
supervise it. and Layton F. Smith was there to help me supervise it.
(). Why do you say that? A. Because he promised me he would
be over and see and watch the job.
(). That was a voluntary matter, a matter of obliging you. There
was no obligation on his part? A. Only his promise. The time
the contract was made he told me he would be here frequently and
help me whenever I wanted him. and I could call on him for infor¬
mation.
421 Q. It was not a part of the contract arrangement between
vou and him? A. It, was not in the written contract, No.
Q. When did you first discover Magrini was drinking? A. I
can give you the exact time from the time book. 1 cannot recall
it from memory.
Q. I wish you would. A. (After referring to book.) lie was dis¬
charged the first, time July 27. 1905.
Q. How long was he out of your employment then? A. Do you
want the exact time?
A. I would like it, as near as may be. A. I think I can find it
for you. 1 think the Friday or Saturday preceding the week end¬
ing August lltli. That would make it, August 4th when he went to
work again.
Q. Mr. Karriek, what progress was made in the work of putting
in the first and second suspended Hours? Was it, rapidly done? A.
No- so rapidly as we did later.
(). What, was the cause of delay? A. 1 should attribute some of it
to the inexperience of the men not being familiar with that class of
work, and on the first floor we had a terrific rain. I remember, that
delayed us several days. It did not rain so hard for several days,
but it filled the foundation of the building with water, softened the
foundation, so that the ground would not bear the weight of the
concrete. The forms were resting on the ground, and when
,422 the weight of' the concrete came on the ground it was all
soft. We had to devise other means of' supporting it..
(). Can you tell me in July. 1905. what floors were laid? A. I
cannot tell from memory.
Q. Can you tell by reference to those time hooks? A. T do not
think I can. I could not be sure.
Q. You spoke a little while ago of the difference that prevailed
with you in the matter of time that you allowed the concrete to set
in the forms. Did you allow a longer time to elapse in the later
floors than in the earlier ones? A. After the weather got cold we
had to allow a longer time.
Q. When did that begin; do you remember? A. T think it was
in October. We had to give it more time gradually.
J 48
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. And how much time? A. 1 think in October we took out noth¬
ing under two weeks, and I am under the impression it was a longer
time than that Indore we could take it out.
Q. Did you not receive instructions in one form or another from
the beginning from the Trussed Concrete Steel Co. or its represent¬
ative, that this concrete would remain in the form set for at least
three weeks always? A. I do not recall that, No, but T know this
in answer to that, perhaps, that Mr. Layton Smith directed
323 us that it was safe to take the forms out in less time than
three weeks.
(J. How did the conversation or conversations, if there were more
than one, between you and Mr. Smith arise with reference to taking
the forms off in less than three weeks? A. I asked him if it was
safe to take them out in less time.
Q. Less than three weeks? A. Yes sir. He examined the con¬
crete and said. Yes, it was safe to take them out.
O. 1 understood vou to sav. 1 mav have misunderstood vou, that
' • • • *7
you did take them out in less than three weeks when Mr. Smith
said so. A. Yes sir.
Q. Is that correct? A. Yes sir.
Q. Then three weeks was the period fixed at some time when the
concrete should remain in the forms, was it not? A. Not neces¬
sarily. No.
Q. What makes you say then that Mr. Smith agreed in some in¬
stances that you could take them out in less than three weeks? A.
You misunderstood me. 1 said when Mr. Smith came on the job
and told us it was safe to take the forms out. we took them out.
324 Q. Without any reference to a three weeks’ period? A
No, I do not recall there was any reference to any period. The
conversation was as to the condition of the concrete at that time,
and whether it was safe to take it out or not.
Q. These conversations in which Mr. Smith gave his assent to
your removing these forms in a less period whenever you removed
them, occurred with respect to what floors? A. T think up to the
sixth floor.
Q. When did you get the sixth floor in? A. T do not recall the
date. T have some memoranda that I could get. but I cannot re¬
member. There is no use in guessing at a thing that you cannot re¬
member.
Q. Was there any delay in the receipt of this steel for the fifth
suspended floor, or what you call the sixth floor, counting the sixth
floor? A. Yes, I think so.
Q. Do you know how much? A. T could not recall the exact
number of days.
Q. .Have you any idea how long the delay in the delivery of this
«ixth floor or fifth suspended floor was, how much time in delay it
cost vou? A. Same answer. I could not recall here anv definite
number of days on any of those floors.
Q. And is that true of all your testimony that your memory is
uncertain about it? A. No, T can state definitely that I cannot
remember these dates.
TRUSSED CONCRETE STEEL COMPANY.
149
325 Q. Is that so of all vour testimony when you have in this
case been testifying as to delays and the length of delays?
A. Xo sir; I have memorandum. I have gone over the matter care¬
fully and have some memorandum which shows me the delay on
each floor.
Q. From what is that memorandum compiled? A. From the
testimony that has been offered in this case very largely, from the
letters from the Trussed Concrete Steel Co., and from my own letters
to them.
Q. So that you have no definite independent recollection, except¬
ing there were delays. You cannot tell us the length of them or
when they commenced? A. Xo sir.
Q. Or how long they lasted? A. Xo sir.
Q. When you were testifying with respect to the extra forms that
you had to construct and the damages that you complained you suf¬
fered in this matter, von had memoranda in vour hand. From what
/ y
were the figures that you read compiled? A. I made the figures
myself.
Q. You keep books individually, do you not of vour own personal
affairs? A. Xo sir.
Q. You do not keep any books? A. Xo sir.
Q. Then when you were giving your estimates of the value
32fi of the second-hand lumber that you purchased for these extra
forms, you were not figuring at all upon what you actually
paid for it but what you think it was worth, or might have been
worth at that time, based upon your own knowledge of prices of
lumber at that time? A. Yes sir.
Q. Do vou sav that vour estimate that vou testified to here is the
same as what you actually paid for the lumber? A. No sir.
Q. What you actually paid for lumber, was that more or less
than the estimate you testified to? A. T cannot say definitely. If
you want me to explain how I got most of that lumber I can tell
vou.
Q. I think you did testify where you got it? A. Yes sir.
Q. That is from this temporary theatre out here? A. Yes sir;
that is where the lumber came from that went into the extra forms.
It was not the lumber that went into the first two sets of forms.
Q. The estimate you gave as to the value of that lumber that went
into the making of these extra forms, was that greater or less than
the amount you actually paid for the lumber? A. I cannot tell
you what I actually paid for the lumber, because part of the cost was
in pulling the building down, hauling it to the Fidelity Storage
Company, pulling the nails out, etc.
327 Q. Did you make a bid for the whole of the lumber, take
it down and cart it at your expense; is that the way you pur¬
chased it? A. Yes sir.
Q. Can you tell us what that was? A. I cannot.
Q. Have you any means of ascertaining what that was? A. Do
you mean what I paid for the theatre?
Q. Yes? A. I think I can tell that by looking back, but I do not
remember it now.
150
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. I understand you to say you kept no books? A. No sir.
Q. I wish you would see what you can do about ascertaining that,
if you please? A. Yes sir; I will try and find out.
Without concluding the cross examination of the witness Karrick,
an adjournment was taken until Wednesday December 30, 1908 at
1 :30 o'clock p. m.
Washington, D. C., December 30, 1908,
1:30 o’clock P. M.
Met pursuant to adjournment at the office of Walter C. Clephane,
Esq., Kendall Building, Washington, I). C., for the purpose of re¬
suming the taking of testimony on behalf of the Complainants in
the above entitled cause.
328 Present on behalf of the eomplainant in the original bill,
Frederick L. Siddons, Esq.
On behalf of the defendant. James I,. Karriek, Walter C. Clephane,
Esq.
James L. Karrick was thereupon recalled for further cross-
examination.
Bv Mr. Siddons:
Q. I wish you would state the width of the building that you con-
strueted for this storage company, the one in suit here, from the
exterior of the outside walls. A. Sixty feet.
Q. In addition to the outside walls there were two inside walls, I
believe. A. Yes sir.
Q. And did they riso from the ground floor like the outside walls?
A. Yes sir.
Q. And to the top of the building? A. Yes sir.
Q. Was the building put entirely upon the ground owned by the
storage company? 1 mean in other words, are either of your outside
walls a party wall, or is it not a fact that thev are well within the
lines of the lot? A. They are well within the lines of the lot.
Q. And neither one is a party wall? A. Neither <>.\e is a party
wall.
329 <J. 1 wish you would give me the thickness of each of the
outside walls. A. That varied with each floor. It began on
the ground floor. It was 27Vi inches thick. That went up two
floors. I believe. The plans show this better than my recollection.
I can look at the plans and tell you exactly. (After examining
plans.) It is 27 1 o inches for the first two floors. That is, for the
ground floor up twenty feet high, perhaps, for the two floors, count¬
ing the ground floor as the first floor.
Q. And it was that width up to what would be the ceiling of the
first suspended floor? A. Up to the ceiling of the second suspended
floor.
Q. Up to the ceiling of the second suspended floor? A. Yes sir.
Now for the next three floor- it was 24 inches. For the next three
floors above that 18 inches, and the wall above the top floor that
carried the roof is 13 inches.
TRUSSED CONCRETE STEEL COMPANY.
151
Q. Now will you give us the thickness of each of the two inside
walls? A. They were just four inches thinner.
Q. All the way up? A. All the way up, yes sir.
Q. 1 wish you would tell me just what the method of constructing
these floors with reinforced steel concrete work was. You have al¬
ready described the making of certain forms or false work as you
characterized it. I want you to describe just what the method
330 of constructing and putting in the reinforced steel concrete
work was. A. It is hard for me to describe that in words. If
I could draw it or show it to you pointed on the plans it would make
it much clearer.
Q. Bv reason of the two inside walls of this building each floor
was divided into three sections separated by the outside and inside
walls. Is that correct? A. That is right.
Q. Now in the installation of this reinforced steel, was it not
necessary whenever you were working on any one of these three
sections to get the brick work at least even with the floor before you
began to lay any concrete in that section? A. Yes, in that section,
but wo did not always wait for the brick work to be put to its full
height before we put up the form. Sometimes we would put up the
forms and bo a little ahead of the brick men.
Q. You knew where the floor was to be in distance or height from
the floor beneath? A. Yes, sir.
Q. And you put these forms sometimes ahead of the bricklayers
in the construction of the wall? A. Yes sir; a few times. Where
wo were delayed for any reason we did it to save time. The forms
• t.
were in the way of the bricklayers and they could not do as good
work. To save time we did it.
Q. You could not, of course, begin to lay any of the concrete until
the steel support or steel supports had been first put in, could
331 you? A. No sir; tho steel would have to go in.
Q. And the steel had for its support the brick walls? A.
cs sir.
Q. Now when you had got in the steel supports for anyone of these
sections, or any part of one of these section- or more, as the case
may l>e. you had then to put in the concrete did you not? A. We
put in the steel just about an hour ahead of the concrete. We had
one man who placed all these steel bars, and he always kept just
ahead of the concrete men. That was done so that they could not
by any possibility become disarranged.
Q. But you could not put in the steel until the brick walls had
reached the necessary height, and that would be necessarily on a
level with each floor? A. Yes sir.
Q. Now what was -he concrete mixture that went in all of it?
What was its base, what was its top or surface, or whatever you call
it? A. Tho concrete was one part Portland Cement, two parts sand
and four parts gravel or broken brick. Sometimes we used the mix¬
ture of gravel and broken brick. In fact, we never used broken
brick in this job without a mixture of some gravel—about one third
gravel and two thirds brick.
Q. That constituted the base? A. Yes sir.
152
FIDELITY STORAGE CORPORATION ET AL. VS.
332 Q. How thick was the base? A. About four inches, be¬
sides the beams. The beams were about 16 inches in depth.
They projected twelve inches below the ceiling, but up to the top
of the beam would make 16 inches. On top of that we put on the
top dressing, which is composed of one part cement, and one part
sand, equal parts of sand and cement.
Q. This mixing machine that you have talked about in your testi¬
mony here, was that used to mix all of this concrete, or the base
••
concrete, or the topping? A. It mixed only the base, and the top
was mixed all hv hand to save time. There were times when the
c
machine did not mix fast enough for us, and we had gangs of men
mixing by hand to hurry the work along.
Q. Was it necessary in securing the plans for the installation of
this reinforced steel concrete to submit plans of the building itself
first to the Trussed Concrete Steel Company? A. It was. so that
they could design the floors to carry the w-ight required.
Q. Who submitted the plans to the Company? A. Mr. Layton
F. Smith got them from the architects, Beecher. Friz Ac Gregg.
Q. You did not do that? A. It was done under by order, but
I did not actually hand them to him. 1 believe 1 did hand the first
set to Mr. Smith. 1 went over to Baltimore and got the
333 plans and went down to Mr. Smith s ollice.
Q. Do you know what part of the work those plans cov¬
ered? A. 1 think they were a complete set of plans, more com¬
plete than here, because these are not a full set. I cannot find the
others.
Q. Is that a practice of furnishing the plans in order that the Con¬
crete Steel Company could prepare the plans for the Engineer De¬
partment? A. Yes. sir.
Q. Was that practice followed to the end of the building? A.
It was only done once. I think the copy was left there with Mr.
Smith, as far as 1 know, unless he returned it to the architect ; but
lie only retained this one set of plans.
Q. Is it not a fact that you did not furnish the plans for the roof
construction until a very late period in the work of putting up or
constructing this building, owing either to the fact that you changed
the design of your roof construction- A. There was a change
in the design of the roof. The design of the roof was furnished
to the Steel Company when they got the original set of plans first.
There was a change in the design of the roof.
Q. That was made by you? A. I do. not know whether it was
made by me. I do not remember at whose suggestion it was made,
but Mr. Lnvton F. Smith and mvself talked the matter over,
« •
334 but who suggested the change I do not remember.
Q. Whoever suggested the change, what was the nature of
the change? Can you recall? A. We made the spans between the
beams about twice as long as were on the floors, for the reason that
the roof carries a much less weight. It is only supposed to carry
the snow, and the building regulations specify how much weight
the roof must carry and the specifications of the building showed
how much each floor must carry.
TRUSSED CONCRETE STEEL COMPANY.
153
Q. W as there not some delay in your making up your mind as
to just what that change in the roof construction should be? A.
Not on mv part. I remember now that Mr. Smith said he thought
thi s new construction could be done and with some little saving of
steel, hut in that case they would be glad to make the change, and
1 think he wrote to the home office about it, but mv recollection is
that it only took a week or less to hear from them.
Q. Hut you are quite sure there was no delay on your part in
making up your mind about the change of plans of roof construc¬
tion, and that you were not called upon by Mr. Smith more than
once for the changes that you wished made? A. I am quite sure
there was no delay that would have delayed the building, because
we would have gone on with the original plans and built the roof
as originally designed. There was no talk of any delay here.
Q. Now did you furnish to Mr. Magrini the plans prepared by
the Trussed Concrete Steel Company for the installation of
335 this system for his use in supervising the work? A. The
plans were there on the job all the time.
Q. Was his attention called to them? A. Oh, yes.
Q. He knew they were there? A. Yes sir; saw them and talked
about them every day.
Q. Coming back for a moment to the construction of these forms,
and generally the construction of the steel concrete work, what was
the centering of these forms? What did that mean? What is the
centering work? A. That is another term for this false work, and
means the same as the form or false work, or center. All those words
mean the same thing.
Q. So that the center includes all these forms or false work? A.
Yes sir.
Q. Is this one of the plans prepared by the Steel Company?
(Plan now shown to the witness is stamped on the back “Engineer¬
ing Department Trussed Concrete Steel Co., June 3, 1905.”) A.
(After examining same) Yes sir.
(). Did — read the instructions on the back of it? A. T did.
Q. You are familiar with the instruction that centering is not to
be removed in less than three weeks? A. Yes sir.
330 Q. Was that stamp of instruction on all of them? A. I
think it was on every plan they furnished me.
(). I observe that the contract that you made with the Trussed
Concrete Steel Company was made, in round numbers, about two
months and a half before you entered into the contract with the
Fidelity Storage Corporation for the construction of this building?
Did you ever notify the Trussed Concrete Steel Company of so much
of the terms of your contract with the Fidelity Storage Corporation
as required you to complete the building on or before November 15.
1905? A. All the notice 1 sent them was in the letters now part of
this case.
Q. Do you recall that you ever did? A. I do not. I will tell
vou one reason whv.
• ^
Mr. Siddons: I do not care for the reason you failed to recall it,
Mr. Clephane: I would like to have the witness finish his an¬
swer.
154
FIDELITY STORAGE CORPORATION ET AL. VS.
Mr. Siddons:
Mr. Clepiiani
Mr. Siddons:
it out.
The reason lie fail.- to recall is not importam
1 >nt he can put it on the record if he wants to.
It goes in under my objection, and I move to strike
The Witness: I had a great deal of trouble with the Trussed
Concrete Steel Company, which arose from what seemed to
387 me their arbitrary way of construing the terms of payment.
It came about in this way. Among the early shipments,
some of them were shipped before 1 was ready to use them, and some
were shipped before I ordered them. Thirty days after these ship¬
ments they insisted on immediate payment. During the corre¬
spondence about these payments they intimated or stated that if I
did not meet these payments they would not make any further,
shipments. It seemed to me a very arbitrary position to take, and
I felt very delicate about informing them of any definite damage
that I would he put to about this delay, for fear they would cease
to ship me the balance of the steel. I could not got that form of
steel from any other concern. It was a patented form. When I
wrote to them, as you will find in a good many of my letters, or
several of my letters, that this delay was causing me great damage,
I put it that way, because I was afraid to put it more specific for
fear they would not ship me the necessary steel to finish the build¬
ing. That is all.
Mr. Siddons: I renew my motion here on the further ground that
the statement is a purely voluntary statement of the witness and
(piite unresponsive to the question.
(J. Did you ever notify the Trussed Concrete Steel Company that
you would be subjected to a penalty of $'?•"> a day for such period
of delay after November lo, lt)Oo. as might occur in the completion
of the building? A. I do not think I did in writing. I think I
did talk to Mr. Smith about that penalty, hut I am not quite positive
about that. I know I talked with Mr. Smith about their arbitrary’
v
way of doing business.
338 Q. Will you tell us when you commenced excavating for
this building? A. I am not quite sure, hut I think it began
in the week ending April 7th.
Q. April 7th? A. Yes; I may be wrong about that. (Referring
to a book.) T thought 1 could tell the teamsters’ names.
Q. You began to excavate before you entered into the contract
with the Fidelity Corporation? A. It might have been before we
formally entered into it. Wo talked this contract over a great many
times, and I rememl^er this: I will tell you how I can fix it exactly
from that minute hook. It was after the 3rd of May. What fixes
it in my mind is this: The Washington Loan & Trust Company
bought these bonds that were issued on the building, and they did
not want any work started in excavating before their mortgage went
on the record, and we held off a number of days waiting for that.
I remember that distinctly.
Q. So that it was after the date when the mortgage or deed of trust,
to the Washington Loan A: Trust Company was recorded? A. Yes
TRUSSED CONCRETE STEEL COMPANY.
165
sir. The forms were made before that, I think a great many, nearly
all of them and a great quantity of material was hauled on the lot
and on the adjoining lot. 1 had about three million bricks on the
adjoining lot.
Q. Now I notice on page 11 of your testimony you state
3d9 that you put the floors in usually in two weeks’ time. “Some¬
times we got then in in ten days, but where there was any
special rush”—and then you go on. When you say you got the
floors in in two weeks, just what did you include in the term “getting
the floors i ii in two weeks”? A. I mean we erected the false work;
or. first, we built the brick work up level with the floor. We erected
the false work and put in the concrete and steel in ten days’ time.
Q. In correcting your testimony the other day as to the amount
of lumber needed for the extra set of forms, on page 182 of your
testimony, you corrected it as to the number of feet. Ought not that
correction to extend to the amount of money? A. Yes, sir; at the
rate of $*20 a thousand would make a difference of 12.000 feet.
There were two errors which would make a difference of 12.000 feet.
At $20 a thousand that should be $240 less than the amount I origi¬
nally stated.
Q. Are you able to state when it was that you purchased the ma¬
terial in that theatre lumber, etc., which you afterwards used in these
forms? A. I could not, 1 looked over my records here last night.
1 could not find the exact date, but I am quite sure it was about the
middle of October.
Q. Have you no hooks which show your disbursements? A. The
only thing that I could look for would he a check stub, and I
340 looked for that last night, hut was not able to find the stub.
I do not remember the man's name that I bought it from,
but 1 thought by looking over my stubs I could recall the name.
Q. You do not know where it was you saw him and negotiated
the purchase? A. 1 think it was out at the Fidelity Storage
Building.
(J. On page 182 you corrected your testimony with regard to
the number of feet of lumber in the forms. You had previously
testified to having used lot).000 feet, and you corrected that to read
250,000? A. I think that was a typographic or stenographic error.
Q. Which? A. The 150.000. But the 250,000 is the correct
amount.
(}. What forms did you there refer to? A. The whole of the
forms; the complete floors and half floor which was afterwards made
2 Mi floors.
Q. As I understand it. the extra set of half forms, the two extra
sets of half forms. Is that right? A. No; there were two complete
sets made originally for the entire building.
Q. I am speaking of the extra ones. A. That would he a set of
forms for half the building, would be the best language. T mean
for half of one floor.
Q. That is the extra service? A. Yes sir. I put in one
341 set for half a floor. Now originally we had a set for two
whole floors.
156
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Mr. Clephane, in (‘filling your Attention to these mistakes that
^ n eoi i e< t ed at t li c last session, says you stated in two places that
certain portions of the form- contained 12.000 feet of lumber. Now
what portion of the forms contained 12.000 feet? A. That should
have been 0.000 feet in what we call tlie stringers in the top and bot¬
tom. 4 he stringers on the bottom were put on the floors. They
were 2 by 8 and some 2 by 10. They were put on the floors because
when wo began to erect our false work, frequently the floor was not
hard or strong enough to hear the studs or posts. So we set them on
these planks or stringers, as we call them, to give them a wider bear¬
ing. and on top of these posts we put similar stringers. Those
stringers for the entire building would take 12.000 feet. But I made
an error and should have cut that in half when 1 was estimating for
this set of forms for half a floor.
Q. ^ hat was the complete amount of lumber in feet, if you can
give it to us. involved or used in making this extra half set of forms.
A. About .">0.000 feet.
Q. And that includes these stringer-, so called, and the forms for
holding the concrete material? A. Yes sir; and bracing boards
which take quite a lot. and the studs or posts which carrv it.
Q. On page 0 of your testimony you state that the storehouse was
completed hv the companv Januarv 25, 1000. and that was
842 a matter of compromise. A. Ye< sir.
Q. And then you go on and add—it was not completed
at that time, hut was accepted as being completed? A. Yes sir.
Q. Was that compromise in writing? A. No.
Q. Was there any action taken by the directors about it? A. Not
in a formal way, except what i- shown in the minute book.
Q. T find no reference to any such action in the minute book,
and if it does not appear in the minute hook there was no formal
action taken? A. No.
Q. Now with whom was the compromise discussed and reached?
A. I think T can explain one reason why there is so little in the
minute book.
Mr. Sinnoxs: 1 do not really care for that. Of course, later on
if you or your attorney think you should make an explanation, he
will probably ask you. That is not the question now. I want to
know with whom the compromise referred to hv vou on page 0 of
your testimony was discussed and arrived at? A. The most of the
detailed discussion was with Mr. Henry I.. Morris, who was expecting
to take a large interest in the concern; in fact, was one of the origi¬
nators of it. and was expecting to put in a large amount of
money, and was also expected to be a director and really acted as
a director, although he never had been really elected one.
848 Q. TTe was not a stockholder? A. Yes sir: he had sub¬
scribed for stock and made a small payment, but never com¬
pleted his payment for his original subscription.
Q. No stock was ever issued to him? A. Oh Yes; stock was issued
to him.
Q. When? A. T do not remember exactly when: some time after
it \\ as issued to me. All of the stock was issued to me in pavment
TRUSSED CONCRETE STEEL COMPANY.
157
for the building, but I had those subscriptions for stock and after¬
wards transferred a portion of that stock to the respective stock¬
holders.
Q. You mean you sold some of your stock, do you not? A. Yes,
only it \va.' understood l>efore I got it it was sold. It was subscribed
for before it was even issued to me, but some objection had been made
by some of the subscribers to paying in money before the building
was further along, and I agreed to carry it up to a certain ]>oint until
I needed the money.
Q. Was that compromise agreed upon discussed, or agreed upon
bv any of the directors besides yourself and this Mr. Morris? A.
* t
Yes sir; it was all talked of at the time.
Q. Who were the directors?
A. Justice Brewer, Mi’s. Karrick and
myself were the directors of the company.
Q. Do any of your own records or the records of this Fidelity Stor¬
age Corporation, or any of its book.", if it keeps any or did keep any
at the time, show what that compromise was? A. Yes, I
344 think so, with some explanation.
Q. I do not want you to tell me the contents of the book.
A. I am not telling you the contents of the book. I am telling you
why wo compromised.
Q. That is not the question. (Question repeated.) I have not
asked you the terms of the compromise. A. The books show the
effects of the compromise. 1 do not think it is set out in so many
words, the terms of the compromise.
Q. What book would show the effect of the compromise? A. The
journal would show it.
Q. When this compromise was arrived at or agreed upon that
completely adjusted all matters in controversy or dispute between
you and the Fidelity Storage Corporation? A. No.
Q. Then it was only a partial compromise, was it? A. Yes sir,
it was a partial compromise.
Q. But it did involve the acceptance by the corporation of the
building as completed on January *25, 190(5? A. No sir; I do not
think that is the right word. It was in this form that they
agreed-
Q. I am not asking you for the compromise. A. That is not the
correct way to put it.
Q. I recall your testimony again on page 9. You were asked,
when was the warehouse completed? This is your answer, I cannot
say just when, but the storage house was completed by the company
January 25, 1906, and that was a matter of compromise which was
not completed at that time, but there was enough completed
345 so that the company accepted it as being completed. After
I had done some other things for the company this date was
fixed as a matter of compromise/’ A. That does not express the
right meaning. One would naturally infer from the way that reads,
that there was nothing to be done on the building by me after Jan¬
uary 26. That was not correct. I want to say they accepted the
building and they agreed not to hold me for any further penalty
for delay, because I got a portion of the building ready for them to
158
FIDELITY STORAGE CORPORATION ET AL. VS.
do business in about that time, and as the two floors that I did have
leady for business were enough for them, they were not losing any
monev on account of the further delay bevond that from not being
able to transact business, and there was a reason for that agreement.
Q. On page 17 of the minute record offered in evidence by the
defendant is a record of the meeting of the board of directors of the
Fidelity Storage C<4 held on April 50, 190(5, and that minute states:
The president having reported that notification had previously been
given to Mr. James L. Karrick to the effect that the provision in
the contract between him and this company for (he erection of this
storage warehouse declaring a forfeiture of $25 a day for each day’s
delay in completing said building on November 15, 1005, would be
enforced.*’ In what form was that notification from the president
to you made? A. We had a great many talks about it.
Q. There was no letter then? A. 1 do not recall any.
Q. T do not find in these minutes any record of a regular
5 40 annual meeting of the stockholders of the Fidelity Storage
Corporation for the year 190(5. Can you tell me if one was
in fact held? A. I’m quite sure there was. Mr. Machen in each
case writes up the minutes of the meeting, but sometimes it is very
difficult to have him send them on, and I think we had some corre¬
spondence about these minutes, and I thought they were received
and put in, but T am not sure about that.
Q. Can you tell me who it was offered you $9 a day for the hoist¬
ing machine? A. 1 think it was the George A. Fuller Company.
If it was not the Fuller Co. it was a subcontractor under them, a
man working on the Times Building. That is where they wanted
to use it, on the Times Building. The Fuller people were the general
contractors for that building. There was a man came from that
building and made me that offer.
Q. Was it verbal or in writing? A. It was a verbal offer.
Q. When was that? A. That was in November, 1905. I think
it was in the fall of 1905, but I do not recall the month.
Q. On page 11 of your testimony, in answering a question by
your counsel as to whether at any time during the process of the
construction of the building it actually took more than two weeks
to put in a floor, your answer is, at no time except when freezing
weather came on. That delayed us on the second floor. A. That
was a mistake if I used that language.
Q. What floor did you then refer to? A. The seventh I
547 should say. Perhaps I ought to say this, that it did take
longer than two weeks on some of the lower floors. There
were two reasons for that delay on the lower floors. One was that it
took-
Mr. Siddons: Excuse me, but I have not asked you anything
about that, and it is making a pretty tremendous record here.
Witness: I will not answer it if you think it is not wise to do
so. But I was trying to correct that statement I made.
Mr. Siddons: You have corrected it. I understood you had cor¬
rected it.
TRUSSED CONCRETE STEEL COMPANY. 159
Mr. Clephaxe: lie lias not finished his correction. I think he
is entitled to finish it.
\\ itnkss: The first floors, the walls were much thicker than they
were on the upper floors, and it took longer to lay the brick. In
some cases there was double the quantity of brick to lay, and another
reason, the workmen were not quite as efficient as they became later.
Those two reasons delayed us some. So that the first and second sus-
pended floors I think did take us longer than two weeks.
Q. You stated the other day that you had to discharge men from
time to time in addition to Magrini. Can you tell me, or is it accessi¬
ble to you from any record that you have, as to how many you dis¬
charged all together while the work of constructing this building was
going on, and if so. I am going to ask you to do it. Can you from
memory? A. I expect there were one hundred or may he more
that we discharged. Let me tell you how it happened. When we
needed extra labor-
348 Mr. Siddons: Excuse me, if you want to explain some¬
thing. 1 must ask the witness, as near as may be not to
volunteer statements not called for by the question. He will doubt¬
less be advised by his counsel as to his rights to make explanations
of his testimony where he desires to do so.
Witness: It is very difficult to sometimes answer your question
with a direct word. I do not know how to answer some of them
without some explanation.
Mr. Clkpiiane: I think you have a right to make your explana¬
tions if you want to do so.
Mr. Siddons: Counsel for complainant objects. Mr. Karrick has
answered the question and the further statement is not responsive
and he moves to strike it out.
Witness: In hiring a gang of laborers, perhaps of 40 or 50 men.
at the end of the first day we would be apt to discharge from 5 to
10 men, sometimes 20 of those men, on account of inefficiency or
drinking on tjie job. The next day we would probably hire 20
more men if we had discharged 20 the day before, and we might
discharge at the end of the first night half of them. We were con¬
tinually discharging inefficient men and putting on other men that
we hoped would be better.
Q. Was this occurring, as you have described it, pretty much dur¬
ing the whole building operation up to the time of putting on the
roof? A. Do you mean discharging men?
Q. Yes. A. More in the beginning than it was towards the
last. Towards the first we had bum workmen, but we had a
340 pretty good gang of men at the end.
Q.* Who employed the men on the job? A. The different
foremen would employ the men directly under them, but I did most
of the discharging.
Q. For the hoisting apparatus, the machine that you had there,
was not your ooiler of unusual capacity* for the machine? A. We
had to have a large boiler to run the hoisting engine fast enough,
and to run the concrete mixer at the same time. We had two engines
FIDELITY STORAGE CORPORATION ET AL. VS.
ItiO
to run from the same boiler. It was larger than we would use on a
hoisting plant.
Q. Did you say it served a double purpose? A. Yes sir; for the
two engines.
Q. And it was not too large fur the double purpose? A. No sir.
Stipulation.
It is stipulated by and between counsel for the respective parties
that the adjournment of the further cross-examination of the wit¬
ness, James L. Karrick, now on the stand, is at the request of counsel
for the complainant, and the delay he asks is not to be charged
against the time within which the defendants are to take, complete
and file their testimony, but such further extension is agreed upon as
will not lose to the defendants the time taken in the adjourn-
350 ment solicited by the counsel for the complainant in the
original bill.
Adjourned subject to notice.
Washington, D. C., January 18, 1909.
Met pursuant to agreement at the office of Walter C. Clepliane,
Esq.. Kendall Building, Washington, I). (\. on the above date at 2
o'clock |*. m., for the purpose of resuming the taking of testimony
on behalf of the 1 defendants in the above entitled cause.
Present: Frederick L. 8iddons, K
ant. and Walter C. Clepliane, Esq.,
rick.
Jsq., Solicitor for the Complain-
Solicitor for the defendant Kar-
James L. Karrick was thereupon re-called for further cross ex¬
amination.
By Mr. Sinno ns:
(J. Mr. Karrick, please tell me who it. was who painted the signs
on the building for you? A. 1 cannot give you the names of the
men. I think there were four men who worked on the signs.
Well, were they employed by the day? A. They were em¬
ployed by the day.
Q. You directed the doing of the work? A. Yes sir. It is pos¬
sible the time book may show the names. Those are here and I can
look through them, if you want them.
351 Q. I want to find out what the cost of those signs was?
A. I think that is shown on that book, if I can refer to that.
Mr. Siddons: Yes.
The Witness: (After referring to book): I cannot tell you
the cost because 1 have not the figures with me.
Q. Can you ascertain it? A. I think I can, ves.
Q 1 will ask you to do so. I understood you to say there were
four [winters employed on the job? A. I think there were, yes.
Q. 5on purchased the paint? A. I do not recall about that just
now. I think I furnished the paint.
. Q. I want to ask you if you have vet been able to ascertain from
TRUSSED CONCRETE STEEL COMPANY.
1(51
whom you purchased the second-hand lumber in that theater, and
how much you paid for it? A. No sir; 1 have not found that out.
Q. Have you endeavored to ascertain? A. Yes sir.
Q. Mr. Karrick, I show you your letter of July 14, 1905, to the
complainant Steel Company, which is already in evidence (handing
witness a paper) and ask you to state what floors you here refer to,
giving tnem the name of suspended floor? A. The second
352 floor referred to here I think would be the first suspended
floor, and the third floor I should suppose would mean the
second suspended floor.
Q. Now, 1 show you your letter, which is already in evidence and
agreed with respect to its date, which was erroneously dated—it is
corrected July 2(5th, 1905—and ask you to state what suspended floor
or floors you there referred to? A. As far as I can recall this letter,
when 1 speak of the fourth floor material here, it should be the third
suspended floor, and 1 think the third floor that 1 speak of in a
later paragraph, I mean the second suspended floor.
Q. 1 show you your letter to the complainant Steel Company,
dated July 29th. 1905, which is in evidence (handing witness a
paper), and ask you to specify which suspended floor or floors
you there referred to? A. (After examining said paper). As far
as I can recall the second floor mentioned would be the first sus¬
pended floor, the third floor mentioned would be the second sus¬
pended floor, and the fourth floor mentioned would be the third
suspended floor.
Q. Now, I show’ you vour letter to the Company of August 5th,
1905, (handing witness a paper) and ask you the same questions
with reference to the floors mentioned there? A. (After examining
said paper). Speaking of the suspended floors, 1 should say there
would be one less in number than the number mentioned in the case
here. The third floor mentioned in the letter I think is in-
353 tended for the second suspended floor, and the fourth floor
mentioned in the letter would be the third suspended floor,
and the fifth floor material would be the fourth suspended floor.
(). I show you your letter to the complainant Company dated Sep¬
tember 15th, 1905, which is in evidence (handing witness a paper),
and ask you the same questions with reference to the floor or floors
mentioned therein? A. (After examining said paper). To make
the answer much shorter T will say, as T did before, that the sus¬
pended floor is one less number in each case than the number given
in this letter.
Q. 1 show von your letter to the complainant Company dated Oc¬
tober 14th. 1905, which has been offered in evidence, (handing wit¬
ness a paper) and ask you the same questions with respect to the
floors mentioned in that letter? A. (After examining said paper).
In each case the number of the floor given in the letter is one more
than the number of the suspended floor.
(J. That is to say, when you mention, as you do in this letter, the
seventh floor steel, you mean the steel for the sixth suspended floor?
A. I think so, as near as I can recall that.
11—2057a
162
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Have you any doubt about it? A. T could not be positive
about it, but that is my best recollot lion.
Q. I show you your letter to the complainant Company
354 dated October 25th, 1905, which has been offered in evidence
(handing witness a paper) and ask you the same questions
with respect to the floor or floors mentioned therein. A. (After
examining paper.) 1 think where 1 mentioned the eighth floor in
this letter it is intended for the seventh suspended tloor.
(). Now I show vou vour letter of November 9th, 1905, to the
complainant Company, which letter has been offered in evidence,
(handing witness a paper) and ask you the same question with
respect to the floor or floors mentioned in that? A. (After
examining the paper.) In each case the floor mentioned in this
letter is one more in number than the suspended floor, as near as 1
can understand that letter.
Q. That is to saw when vou refer in this letter to the ninth floor
steel, you mean the steel for the eighth suspended floor? A. Yes
sir.
Q. And that would be true with reference to the shipment of the
material of the eighth floor, it refers to the seventh suspended floor?
A. Yes sir; judging from the language of the letter which is the
only thing I have to judge from.
Q. Has it not been your habit with respect to this building; at
least during its progress of construction, to refer to the floors, the
ground floor, first floor, and so on up, not differentiating in
355 your mind or your word written or spoken between a sus¬
pended floor and a floor as understood in the popular way?
A. I think that, in the main, is true; but the first floor I think 1
got confused. I confused it right there. The first suspended floor
in our minds we nearly always speak of as the first floor, but after
we got that in we corrected ourselves, and always after that we spoke
of the third and fourth floors as the usual term to designate the third
floor of anv building.
Q,. Counting the ground floor as the first floor? A. Counting the
ground floor as the first floor. The first one or two floors we got
confused, I think, and sometimes spoke of them one way and some¬
times another way.
Q. Mr. Karriek, can you tell me which, if any, of the suspended
floors you kept the forms set for as much as three weeks? A. The
seventh, eighth and ninth floors and the roof we kept part of the
forms in for three weeks or longer. Those were the regular floors
of the building, counting the ground floor as number one.
Q. Then you mean you kept the sixth, seventh and eighth sus¬
pended floors and the roof forms set. the forms for those floors and
the roof, or nearly all of them, set for three weeks or more? A. Not
all the floors, but nearly all the floors, if the weather was good and
the concrete appeared to be hard enough.
356 Q. In some of thc-e sections into which the building was
divided by the walls? A. No. I should say as to that portion
of the floor that would have warmer weather it would set faster, and
the portion of the floor in colder weather would set slower.
TRUSSED CONCRETE STEEL COMPANY. 163
Q. Are you still speaking now of the sixth and seventh suspended
floors? A. Yes sir.
Q. And the roof? A. Yes sir. Sometimes we would take the
floors out, or part of them, and replace them with heavy posts in the
center of the beam to relieve that beam from sudden jar in working
over it.
Q. Why would you do that? A. Because it had not set suffi¬
ciently. If we could get these forms out we could use them on an¬
other floor.
Q. That statement has still reference to this sixth, seventh and
eighth suspended floors and the roof? A. Yes sir; the roof, we left
all the forms in for some time; I should say eight weeks or more.
We did not need to use them again and we could leave them in until
we were sure the roof was thoroughly set.
Q. You understood, did you not, that the steel material used in
this construction had to he manufactured after the Company had
received the architect’s plans, and had themselves prepared the
plans for the manufacture of the steel?
357 Mr. Clepiian
whole matter is
and speaks for itself.
E: Objected to upon the ground that the
covered by the contract which is in writing
A. I had no idea that it had to be manufactured, especially for
this job until the correspondence developed it, which was some time
after several shipments had been made.
Q. Did you suppose then that the steel material for this particular
building was in stock?
Mr. Clephane: The same objection.
A. At the time the contract was signed until I was informed
otherwise, I supposed it was stock material.
Q. You did not know then at the time you signed the contract
that the plans would be required of you and that those plans were
needed in order that the steel might be made? A. I knew that the
plans would be required. 1 supposed that was to enable them to
estimate on the quantity of steel, and it did occur to me that these
lods might be cut to length, but I supposed they had the rods in
slock, and it was a very simple matter to cut them off the proper
length. That is as every other system of reinforced concrete that I
recall now is made in that way. They carry these rods in stock of
various sizes and cut them off to suit each particular building.
(J. You were called upon for these plans by the Company well
before you bad entered into your contract with the Fidelity
35,S Storage Corporation, were you not, and you furnished them
before that time? A. If I furnished them I was called on
before. I cannot fix the dates. They had the plans at the time they
asked for them.
Q. Is it not a fact that early, perhaps before even your contract
with the Fidelity Storage Company was made, that there was doubt
in vour mind as to the design of tiie roof construction and that that
was left an open question until a much later period in the work of
constructing the building? A. No; as I recollect it, the design of
104
FIDELITY STORAGE CORPORATION ET AL. VS.
the roof was originally planned exactly like the floors but 1 think
with the steel at less frequent intervals. 1 mean by that the size
and number of beams were to be the same, but a less quantity of steel
placed in those beams, ami a less quantity of steel put into the floor
slab*.
Mr. Siddoxs: Excuse me. you are going beyond the question.
You answered the question by no. I have not asked you anything
about that.
Mr. Clephaxe: I will say to the witness he has a right to answer
the question.
Mr. Siddoxs : I will have to make an objection to this unrespon¬
sive and uncalled for statement, and move to strike it out.
The Witness: At a later period, that is, after the contract was
signed, in talking the matter over with Mr. Smith, it was suggested^
I think by Mr. Smith, that possibly a simpler design, or 1
.459 will put it another design, could be made for the roof that
would save us l>oth money, one that would save me putting
in so much concrete and would save the Steel Company in lessening
the amount of steel. The second design was submitted by Mr. Smith
which was the one finally adopted, and they sent the steel for that
second design, and that is the one which is in the building now.
Q. Then the sum and substance of your statement is that this
suggestion of the change in roof construction did not emanate from
you, hut rather from Mr. Smith? A. I cannot recall who first sug¬
gested it. We talked the matter over but I cannot recall now who
first suggested it; But Mr. Smith finally said that he thought another
design could he made which he thought would save us both money.
Q. Did you confer with your architects about that change of roof
design? A. No sir; the architects had nothing to do with what we
called the engineering part of the building.
Q. Do you remember when it was that you assented or determined
whichever the fact may be, upon the change in the roof design and
construction? A. I do not recall now without refreshing my
memory.
Q. I will show you a letter from you to Mr. Layton Smith, dated
October 12, 1905, (handing witness a paper) and ask you to
360 see whether that will refresh your recollection? A. (After
examining said paper.) This letter refers to roof plans which
we had talked of before.
Q. That is scarcely an answer to my question. A. Well, it fixes
the date at which we-
Q. Let me put this question to you. At the date of that letter had
the change in roof design and construction been agreed upon be¬
tween you and Mr. Smith? A. The matter had been discussed by us
previous to that, but I do not think the details had been submitted
to me. Possibly they had. The language of this letter is not very
clear.
Q. Now, is it not a fact that a few days after the writing of that
letter to Mr. Smith, he saw you here in Washington and you fur¬
nished to him the sketches of the roof plan as its design liad been
changed? A. That was absolutely impossible. I would not for one
TRUSSED CONCRETE STEEL COMPANY.
165
minute attempt to change the ] Ians of reinforced concrete construc¬
tion without consulting some experienced engineer in that matter.
Q. I am not speaking of reinforced concrete, but the general de¬
sign and construction of that roof? A. That is what I refer to.
Q. You furnished them no sketch plan at all of this roof as
changed after the change in design had been agreed upon? A. Oh
no. 1 might have possibly furnished the sketch of what I would
like to have done or something like that, but never furnished the
sketch for any absolute change.
361 Q. I am not now asking you about the plans that the en¬
gineering department of the steel company would make for
the purpose of manufacturing the steel, but the plans as to the roof
design and construction which ordinarily would be a part of the
architect’s duty to do? A. No: the architects furnished no plans of
construction in this building. The design of construction of the
floors and beams and roof was furnished by the Trussed Concrete
Steel Company.
(). To make it a little more definite, did you on or about October
16, 1905. furnish Mr. Smith with a sketch of the changes in roof
design such a< vou desired? A. Not to my recollection. I cannot
fix any date.
(J. Can you say you did not at any time do that? A. No sir; I
could not say I did not furnish a sketch which I would like to have
used as a design.
Q. If you furnished such a sketch, was it not furnished after the
date of this letter of October 12. 1905, which I have just shown you?
A. I should think it was probably furnished before that. That re¬
fers evidently to some correspondence we had about the change of
plans.
Q. Do you say it was furnished before? A. I have no recollection
of the date. T have no recollection of furnishing any sketch, but 1
may have done it. I am judging by the language in the letter
largely.
(). In your testimony at page 215 of the record, you state
362 that forms for false work or centering that you had made at
the beginning of this construction work were made before the
3rd of May 1905. Are you quite sure about that? (Handing witr
ness testimony.) I will show you your testimony if you would like
to look it over. A. (After examining part indicated.) I think that
is correct.
Q. Your testimony was that a great many, nearly all of them,
were made before this period. Can you tell us with reference to
the floor how many of the forms for centering false work were made
prior to May 3. 1905? A. T cannot recall the exact number.
Q. Do vou think vou had a full floor made? A. I cannot sav
as to that. T cannot recall that.
Q. You have no recollection as to the number? A. No sir; I
know we had carpenters working for some time before that on these
forms.
Mr. Siddons: I offer in evidence a letter from Mr. Karrick to
Mr. Layton F. Smith, dated October 12, 1905, to which his atten-
166
FIDELITY STORAGE CORPORATION ET AL. VS.
tion was directed in a few preceding questions, and it is stipulated
and agreed by and between counsel that the said letter is a true
copy of the original and said copy may be used and read in evidence
in lieu of the original.
(The same is hereto attached).
Q. I show you now a letter from you to Mr. Smith, dated June 2,
1905, and call your attention to the words, “as beam boxes are
about all made/’ Did that refer to the centering work?
363 A. It did, ves.
7
Q. In referring again to this letter of June 3, in which
you also called attention to the fact that the beams are designed
fourteen inches across instead of twelve as originally given you, that
change was agreed upon between you and Mr. Smith, was it not?
A. Which change?
Q. The change to the twelve inches such as you had made them?
A. Yes; or rather the original sketch given me bv Mr. Smith showed
the beams to be twelve inches, and 1 had gone ahead on that under¬
standing and made my forms to fit twelve inch beams. Then later
when the steel plan came the beams showed fourteen inches.
Q. But you adhered to the twelve inch plan? A. We adhered
finally to the twelve inch plan.
Mr. Siddoxs: I offer that letter of June 2, 1905, from Mr. Kar-
rick to Mr. Smith, in evidence.
(The same is hereto attached).
Q. Mr. Karriek. ;is late as July 1905. you were uncertain, were
you not, as to whether your floors of this storage house should be
constructed with solid concrete or tile construction, and that was a
subject matter of some discussion between Mr. Smith and yourself,
you sought Mr. Smith’s advice about that, did vou not? A. The
matter was talked over, yes.
364 Q. And you asked him to give you some figures as to the
probable cost of such change from the original plans or
designs. A. I think so, ves.
Q. And this letter of July 8, 1905. you received from Mr. Smith,
did you not? A. I think so. I have a faint recollection of having
received that letter.
Mr. Siddoxs: I now offer in evidence copy of a letter from Mr.
Divton F. Smith to Mr. Karriek. dated July <S, 1905, and it is hereby
stipulated and agreed by and between counsel for the respecthc
parties that said letter is a true copy of the original, and said copy
may be used and read in evidence and at the hearing of this cause
in lieu of the original.
(The same is hereto attached).
The Witness: This di scussion arose from a desire to see if there
was some less expensive way of constructing the floor from the one
we had originally planned and the one under which we were working.
Without concluding the cross examination of Mr. Karriek, further
proceedings herein were adjourned until to-morrow, Tuesdnv, Jan¬
uary 19, 1909, at 1 o’clock p. m.
TRUSSED CONCRETE STEEL COMPANY.
167
Washington. D. C., January 19, 1909.
Mot pursuant to adjournment at the office of Messrs. Cle-
36."> phane & Clephane, Fendall Building, Washington, D. C., on
the above date for the purpose of resuming the taking of
testimony on behalf of the defendants in the above entitled cause.
Present: Frederick L. Siddons, Esq., Solicitor for the Complain¬
ant;
Allen O. Clephane. Esq., solicitor for the defendant, The Fidelity
Storage Corporation, and
Walter C. Clephane, Esq., Solicitor for the defendant Karrick.
Whereupon James L. Karrick, one of the defendants, was re¬
called for further cross examination.
Bv Mr. Siddons:
Q. Mr. Karrick, referring to vour testimony of vesterdav, on
page 241, after the receipt by you of the letter of July 8, 1905, from
Mr. Smith which was shown von, did you abandon the idea of
making the change in the floors of vour building which was the sub-
ject matter of that letter? A. May T see the letters. I do not
recall.
Q. Yes (handing witness letter). A. (After examining.) We ad¬
hered to the original plan, the principal plan.
Q. That is. you abandoned the thought that had been
366 under discussion of a change from the original plan? A.
Yes sir.
<>. Before entering into the contract with the complainant
Steel Company did you make any investigation as to its standing
and its system of reinforced steel construction, of reinforced con¬
crete? A. T do not know that I looked into the standing, that is,
the financial standing much. Their system of reinforced concrete
construction T did look into.
Q. Did you ever go to their office in Detroit? A. No sir.
Q. Or to their factory in Pittsburg? A. No sir; I did not know
that they had a factory in Pittsburg.
Q. At no time? A. Somewhat later, when there was delay and
they asked me to notify the Pittsburg people to save time, that was
the first T knew of it.
Q. Do you know how soon that was? A. No; I cannot say.
It was after there had been considerable delay; T should think when
something like the fifth and sixth suspended floors were under dis¬
cussion.
Q. Where did you understand, prior to that, that the steel material
itself was coming from? A. T had no understanding whatever
about it.
Q. And you did not know from what point it would be shipped to
you? A. No sir.
%}
367 Q. You knew, of course, that it came from out of town,
from out of the District of Columbia, did you not? A. Yes
sir.
Q. Mr. Karrick, coming hack a moment to the concrete mixers
168
FIDELITY STORAGE CORPORATION ET AL. VS.
and the hoisting machine and boiler used in connection with that—
1 believe you have already testified that was a 70-horsepower boiler?
A. Xo sir: about a 20-horsepower.
Q. IIow much horsepower was required for hoisting—the use
of the hoisting machine that you had there at this building? A.
Well, I think a 12-horsepower would have done the work, but a
20-horsepower was much better; it was bettor to have the surplus
power, a great deal better.
Q. When you speak of a 12-horsepower having been sufficient,
do you include the use for hoisting and running the concrete mixer?
A. Xo sir; just the hoisting plant alone. They usually put on a
10 or 12-horsepower boiler on a hoisting machine; one reason they
do not put on a larger one is that they want it as light as possible
so that it can be transported from one building to another.
Q. And have you been able to ascertain the name of the party
who offered von nine dollars a dav for this hoisting machine? A.
Xo sir.
Q. Coming back again to the making of vour false work, center¬
ing forms, as they have been variously called, what thick-
ness of form did you use in making your beam boxes and
slab forms? A. Part of the beam boxes were made out of
psth stuff, but where they were made of "xth it had to be frequentlv
reinforced with additional strips; some of the beam boxes were made
of two-inch stuff.
(>. Can you give us any idea of how many were made of one
size and how many of the other? A. Xot accurately.
0 Have you made the calculation? A. Xo sir. Tt took about
the nine amount of lumber for each one. if that is what you mean.
The box that was made out of Csth material was reinforced at such
frequent intervals with other strips that it took about two inches of
lumber.
Q. Whether it took two inches or less or more, have you ever
calculated how much it did take? A. Yes sir; it took about f»0 feet
for each. nO feet of board measure-
Q. When did you make that calculation? A. T have done that
several times. The one that is freshest in my memory was made a
short time before we began to have this testimony.
Q. Have you those calculations? A. T have, yes sir.
Q Xow. about the slab forms. T believe, they are called, you told
us about the beam boxes? A. They were all made of 7 /*th lum¬
ber.
3P>9 Q. What size stringers did you use. extending from beam
hoy to beam nox on which to lav your false slab centering?
A. Most of them were 2x8 ? s; some 2xl0 ? s, and some 3xl0’s.
Q. Can vou tell u^ how many were made of one size and how
many,of the other? A. Xo sir; I could not.
Q. That floor slab centering is what you call doors, is it not? A.
That is what T referred to when T just said it was made of 7/ sth ma¬
terial. the panel- or doors.
O. But previously in vour testimony you had referred to the mak¬
ing of doors, and T want to know if you are now referring to that?
TRUSSED CONCRETE STEEL COMPANY.
169
A. Yes sir; I am referring to that. They were made of ysths
stuff.
Q. IIow were those stringers placed? A. They were three over¬
head. running length-ways of the building, and three underneath
running length-wavs of the building.
How did you support the ends of those stringers? A. They
were supported at intervals of about every three feet by studs or
struts, as we call them.
Q. Did they rest on the sides of the beam boxes? A. No sir;
they went under the beam boxes, and the beam l>oxes rested on those
stringers.
Q. Did you have a cross-stringer or joist under the stringer
.‘170 running at right angles to them to support them in the cen¬
ter? A. That was what those stringers were; they ran at
right angles.
Q. The cross stringers? A. No sir; the stringers went lengthwise
of the building and the boxes went across.
Q. Can you tell us what was the size of the cross stringers or
joists? A. Those were the stringers I have just told you about.
They ran lengthways of the building and not across the building.
The beam boxes went across.
Q. Did you use joists to support the floor slab doors? A. Those
joists supported the stringers; the stringers supported the beam boxes
which rested directly on the stringers, then we used blocking be¬
tween the stringers and doors or panels.
Q. That is very technical, and it is not quite clear to me. A.
That is as clear as 1 can make it without drawing a diagram.
Q. I will ask you to do that in a moment. That is not very
clear to me. IIow were the joists, or whatever you may call them,
that were used to support the floor slab doors, spaced? A. Let me
draw a little sketch. That is getting a little hazy in my mind. Just
give me a few minutes and I can answer you.
371 Q. Very well. A. (After drawing a sketch.) The draw¬
ing of this sketch recalls that there was a cross joist that
crossed the building.
Q. Sometimes called a cross stringer? A. Yes sir; it went be¬
tween each beam box, and that was supported by studs on the floor
below.
Q. Since you have recalled that—that is. recalled the use of those
cross stringers or joists—I am going to ask you what was their size?
A. They were 2xi0’s; I think, mostly 2xl0’s.
Q. And what was the size of the supporting post, or whatever
you call it. used under this cross stringer or joist? A. Those were
4x4’s; 4" square. We had a good deal of studding, 2x4, and I
would nail two of those together, making a piece 4x4.
Q. IIow were these spaced? A. They would be every three feet,
running lengthways of the building, and three lines of posts run¬
ning down each section.
Q. Now coming back to the question of the size of the joists that
you used to support the floor slab doors? A. That is the cross joist
that I was just talking about.
170
FIDELITY STORAGE CORPORATION ET AL. VS:
Q. Have you stated how (hey v.< re >paced? A. They were spaced
between heam boxes, about 7 feet apart.
M72 Q. Have you told us. Mr. Karrick, what si/e supports
you had under the stringers, and bow they were spaced have
you answered that? A. I do not think I have. They were of the
same size as the others.
(J. \\ hich others? A. The ones under the cross beams, cross
joists.
Q. And how were they spaced? A. There were two of those
under each beam box, one between each beam box. That would be
three to each beam box.
Q. Are you speaking of the supports for tin* stringers or the beam
boxes? A. This is the support for the stringers that was spaced,
the supports right under each beam box. The beam box rested on
top of the stringer: that would be three to each beam—one moment.
It would be nine studs in each section to each beam-
Q. I am not sure that I follow you entirely clearly because 1 that
is rather technical. Let me ask vou this. Have von told us what
-ize supports you used under your beams? A. These are the ones [
am talking about: they were 4x4’s.
Q. Itow were they spaced? A. There were six of those under
each beam. What l mean by beam now is the length of beam in
each section. They were six right under each beam and three half
way between that beam and the next beam. That is how I make
it nine studs to each beam running right through the building. Bv
tbt* beam 1 mean IS feet long or twentv feet long, that would
*» — • >
• > i * >
be one-third —one of tho-o divisions, one of those three divis¬
ions of the building.
Q. Did you use any X-bracing? A. I do not understand what
that means. Cross bracing?
Q. I suppose it is cross bracing. 1 understood the technical ex¬
press was X-bracing? A. That is the same: they call it cross brac¬
ing.
Q. What size cross bracing did you use, and how was it spaced?
A. Most of that was 1 x 6.
Q. Will you make a little sketch of that? A. Shall T describe it
in words?
Q. Just make a little sketch of it. A. (After making sketch.!
These upright lines (marked studs) represent the 1 x 1 posts.
These (marked beam boxes) are the beam boxes.
Q. And the beams rested in those, T suppose? A. Yes sir. I
shall mark these “stringers”. These (indicating) are doors or
panels. There (indicating) are the stringers. There are two studs
under each beam box. There is a cross-beam—I cannot draw it in
there—nailed across there, and the beam box rests on that cross
beam and these studs here in the center (indicating).
Mr. Siddons: 1 would like to have that sketch go into the evidence
with Mr. Karrick’s testimony.
The sketch is marked Exhibit \. and follows tbi< page.
(Here follows diagram marked page 174.)
Ql
TRUSSED CONCRETE STEEL COMPANY.
171
375 Q. With reference to the sketch which you have made,
and which has been offered in evidence in your testimony,
what was (he size of that cross bracing? A. One by six, or one by
eight; it depends upon what we have. We use either one by six or
one by eight.
Q. Have you anv method of determining now from anv record
of the sizes actually used by you with reference to all this false work
or centering? A. We do not use any one size; for the cross bracing
we use some one by six and some one by eight. I cannot tell you
what proportion we used.
Q. My question is intended to be a little more general than that
and to include not merely the cross bracing, but as to all the center¬
ing or false work forms. You said in your testimony here to-day
that most of it was of this size? A. T have given you an answer as
near as T could.
Q. 1 do not think you told us how that cross bracing was spaced?
A. One line of cross bracing went lengthways, horizontally length¬
ways of the building.
Q. The whole length? A. The whole length, yes sir. and there
were two other lines that went diagonally across. That diagonal
position was repeated; that was to prevent the form from swaying
as the workmen were on it.
Q. Can you tell us the length of the diagonal cross brac-
376 ing—the length here (indicating on the sketch')? \. 1 think
we used fourteen-foot strips and nailed them together to make
a piece long enough. They would run about 25 feet, I think.
Q. Did you use any footing blocks on your bases? A. Yes rir; we
used some blocks, but we used stringers at the bottom.
Q. Can you tell us how many of those footing blocks you did
use? A. No sir. T cannot tell exactly. I figure that it took about
2,000 feet of lumber to furnish the blocks on the job. We used
blocking at frequent intervals between the top stringer and the cross
joists, or between the beam boxes, where most of the blocking was
used—every place like that (indicating on sketch). A stud went
on one side of that stringer, and then we used blocking on top of
the stringer to form an additional brace.
Q. What I am trying to get at is how you are able to calculate
the quantity of lumber you used? A. I can give you the detailed
figures.
Q. The question is rather how you are able to do it; how have
you been able to do it; from what data? A. I can figure it up from
that sketch approximately; it is impossible to give it to a foot. No
one could figure it to a foot, or even a small fraction. For instance,
on these diagonal braces the lumber does not come long enough ex¬
cept at very high prices: it would be very high priced lumber to get
those diagonal braces, so we used fourteen or sixteen foot boards, or
whatever we have, and lap them and nail them together, and
377 in that way get a piece twenty-five feet long for that diagonal
brace.
Q. These estimates, then, or approximations, to use your own
language, of the amount of lumber used, you have figured out from
172
FIDELITY STORAGE CORPORATION ET AL. VS.
vour recollection of the character of false work and centering as the
dimensions of the floors and the requirements as you determine
them, for this cross bracing so called: is that it? A. T should say
including the cross bracing, yes sir.
Q. Of course including that. Do you know what the capacity of
that concrete mixer was that you used? A. Yes sir.
Q. What was it? A. It was one-sixth of a yard ns each hatch.
Q. What do you mean by that? A. That is the quantity that
it could mix at one time.
JJr. Clephane: One-sixth of a cubic yard, do you mean? •
The Witness: Yes sir; one-sixth of a cubic yard.
(By Mr. Sinnoxs:)
Q. Now, Mr. Karrick, with respect to any of the damaged condi¬
tions in this building of which you have been testifying, and which
is the basis of your complaint against the Steel Company, have you
repaired any of the damage done? A. Yes sir; some of it.
Q. W hieh? A. On the interior of the walls, that is, where the
mortar was damaged by freezing, we raked out those joints
378 and pointed it up with good mortar, and also on the front
we did a considerable amount. In the front brick work we
raked out the joints and re-pointed them, and then we replaced some
of the stucco in front.
Q. When was that done? A. That was done before the front
staging was taken down.
Q. Before the building was completed? A. Yes sir, before the
building was entirely completed, some time after the roof was on
though.
Q. That was in tin* upper part of the building? A. Yes sir: the
entire upper part of the brickwork that shows on the front.
Q. When you speak of front, do you mean the north front? A.
Yes sir.
Q. In the side walls? A. No sir, on the front, fronting U Street,
down for a distance of 15 or 20 feet; down from the topmost brick
that shows.
Q. Does the stucco work go all the way up to the top of the build¬
ing in front? A. Yes sir; from the top of the front down for 10
or 15 feet is all stucco: below that appears panels of brickwork laid
in a pattern.
Q. This damage in the front there that you said you corrected
before the platforms were taken down, was that below that stucco
work that you have just described? A. Yes sir.
379 Q. And for a distance of how far? A. Ten or fifteen feet/;
I do not recall now. It is quite apparent by looking at the
building where we stopped.
Q. That work consisted in raking out the mortar? A. In rak¬
ing out the joints of damaged mortar and repointing it with fresh
mortar.
Q. Do I understand then that the north front of this building, the
stucco work only extends beginning with the top down a distance of
ten or fifteen feet, did you say? A. That is all across the top of the
TRUSSED CONCRETE STEEL COMPANY.
173
building and then there are false pilasters of stucco that run down
to ground or run down rather to the second story and then all below
the second story is stucco.
Q. I asked you at the taking of testimony yesterday if you would
ascertain the cost from those men who painted the signs for you,
have you done that? A. No sir; I have not had the time as yet.
Mr. Siddons: Mr. Clephane, I rather think that is all that I care
to ask, except that I have not that information with regard to the
painters.
Re-direct examination.
By Mr. Clepiiane:
Q. Mr. Karrick, you spoke a few minutes ago of three lines of
posts running down each section of the lloor in the building. -Ju-t
what did you mean by the word “section'’? A. There are
380 three sections to the building, running lengthways of the
building. The building is divided into three equal parts by
interior and division walls.
Q. The front of the building is how many feet inside? A. It
varies in width because the walls vary in thickness. The outside
measure is 00 feet.
Q. So that the length of each section or beam, I assume, would
bo in the neighborhood of 18 feet? A. Eighteen to twenty feet. It
would be twenty feet from end to end of a beam. Perhaps eighteen
feet would show inside of the brick walls.
Q. When you say that the beam boxes took about 50 feet of board
measure, what do you mean by that? A. I mean that the beam
boxes were, for convenience in handling, made in two pieces, so
that each beam box 1 should have said is nine or ten feet long, and
we used two of those to make one piece, and when I said there was
50 feet of board measure in each beam box I meant in each beam
box nine feet long, taking two beam boxes to each beam in each
section.
Q. And there would be 50 feet of board measure to each beam box
nine feet long, or eighteen feel long? A. Nine feet long, or 100
feet board measure to each beam box or each section.
Q. Mr. Siddons was asking you about some uncertainty as to
whether the floors of the storage warehouse should be constructed
with solid concrete or tile construction. Can you tell us about
when that uncertainty commenced in your mind? A. I do
not think there ever was any uncertainty. We were going
881 ahead putting in the floors as they are now constructed, when,
during some discussion, the question arose whether there
might be a cheaper plan, and this letter referred to the figures which
Mr. Smith got. up for me to see whether this plan was a cheaper one.
We never decided to change the construction of the floors.
(}. Was any instruction given to the Trussed Concrete Steel Com¬
pany to delay shipments on account of this discussion between you
and Mr. Smith? A. None whatever; it never got to that point.
Q. Now, some weeks ago, when Mr. Siddons started to cross ex-
174
FIDELITY STORAGE CORPORATION ET AL. VS.
amine you, he was asking you about the foundation of the building.
Was*there anv steel used in the foundation? A. Yes sir.
Q. From whom did that steel come? A. It came from these
same people.
Q. I understood you to sav at that time that you were not readv
for the steel until July, and that you commenced the foundations of
the building some time before that. Was any steel used in the foun¬
dation before July? A. Yes sir; I did not mean to state that I was
not ready for any steel before July. 1 meant that on these suspended
Ilnurs 1 was not ready for it. We were ready for the foundation
steel and had it in before Julv.
%>
Q. You were also asked about the dates when you wrote for the
steel fou the various floors and you could not at that time recollect
the dates for each of those floors, but stated. I think, that you could
refresh your recollection on that point by the correspondence,
3S2 which has been offered in evidence here. Have you done
this? A. Yes sir, I have.
(). Now. are you in a position to state just when you were ready
for the steel work for the various floors iji that building? A. I am.
Q. State it if you please. A. I would like to have that paper that
1 left here. (The paper was handed witness.) Shall I begin with
the first floor in which there was any delay?
Q. Yes, if you will.
Mr. SinnoNs: I think I ought to be permitted to ask the witness
from what he is reading, or purporting to read?
The Witness: This is the data which I have made from the cor¬
respondence which has been offered in evidence.
Mr. Siddons: Exclusively from that?
The Witness: Exclusively from that, ves sir.
Mr. Siddons: Is it used for that purpose now, to refresh your
recollection ?
The Witness: Yes sir.
Mr. Ci.kpiiane: It is simply to got an answer to Mr. Siddons’
question that was asked by him on cross examination.
Mr. Siddons: There is no objection to the witness being asked in
regard to the matter, but he was beginning to read from the paper
and I wanted to know what it was.
A. The material for the fourth floor was ordered July 26, 1905,
to be delievered August 15th.
Mr. Siddons: The third suspended floor?
383 The Witness: Yes.
Q. Were you ready for that floor on August 15th? A. 1
was, ves sir; I was readv before that time. This material was
received August 23rd, and at the same time the fifth floor material
was received.
Mr. Siddons: The fourth suspended floor?
The Witness: Yes sir. the fourth suspended floor. The fifth
floor material was ordered August 5th shipped not later than two
weeks from the shipment of the fourth floor material, and instead
of that the two floors were shipped together. There was a delay
there of eight days in the receipt of the material for the fourth floor,
TRUSSED CONCRETE STEEL COMPANY.
175
and there was a further delay of two days on aceount of the extra
time which it took to handle those two floors which were shipped at
one time.
< 4 . Explain just what you mean by tho extra delay caused by the
handling of the two floors which were shipped at one time? A.
W ell, it took twice as long to got the material from the car to the
building; and then it took an immense territory to spread this steel
out in so that we could get the different lengths that the plans called
for; we could not use it until we had it all spread out, each length in
a different pile.
(£. W ere the two shipments mixed together? A. Entirely mixed
together.
Q. That is. the two floors? A. The two floors, yes sir.
{}. When were you ready for the sixth floor? A. The sixth floor
we were ready for on or about September 28th. The material
384 for that floor was received on October 14th, making sixteen
’ days* delay in the receipt of that floor.
(j. When were you ready for the seventh floor? A. We were ready
for the seventh floor on or about October 12th. That material was
received October 27th, making fifteen days of delay.
(J. When were you ready for the material for the eighth floor? A.
W*o were read for the eighth floor November 12th, or I think a little
before that time. W’e received that material November 20th. There
were eight days' delay on that floor. We were also delayed a part
of nine days hv freezing weather.
Q. When were vou ready for the next floor, the ninth floor? A.
That was ordered shipped not later than November the 14th. We
received that December the 8th, twenty-three days’ delay, and also
were delayed by freezing weather in putting the floor in.
Q. When were vou readv for the roof? A. The roof was ordered
* i t
to he delivered hv November the 28th. We received that December
12th—fifteen days’ delay, and we also were delayed on the roof by
freezing weather.
Q. 1 notice the correspondence in evidence shows that you or¬
dered tile ninth floor shipped not later than November 14th, and
the material for the roof to he shipped not later than November 28th,
the last of which dates was after the date fixed for the eomple-
38d tion of that building in your contract with the Fidelity
Storage Corporation. Why did you order the ninth floor
material and the roof to be shipped so late?
Mr. Siddons: The question is objected to as not proper redirect
examination; it is part of the examination in chief.
A. 1 had already been delayed on the building, and 1 did not
want it shipped before the actual time that I could use it, on ac¬
count of their requiring payment for exactly within thirty days from
the time it was received.
Q. Mr. Karrick. Mr. Siddons asked you about the composition of
the concrete used in that building. Do you recollect whether there
was any time when you did not have sufficient gravel, sand or ce¬
ment to go on with the work? A. There was absolutely no delay
from anv cause of that kind.
176
FIDELITY STORAGE CORPORATION ET AL. VS.
<T I)o you recall Mr. Magrini's statement that there was no»
enough of those articles? A. I think I do.
Q, What have you to say with regard to that statement? A. It
is not true.
Q. Then you were also asked about the character of the mortar
used in the building. Can you state what the composition of that
mortar was? A. The mortar was made from lime and sand, in the
proportions of one-third lime and two-thirds sand, and then tem¬
pered with one-third of Portland cement. The Portland ce-
38t> ment was put in just before the bricklayers put it in the wall.
Q. Mr. Magrini has stated that the concrete blocks were
made of ashes, cinders, old mortar and cement. Is that correct?
A. Why. we made a great many thousand interior partition blocks
of cinder and some old mortar, but that had nothing to do with the
work of the Trussed Concrete Steel Company.
Q. Let me ask you whether there was any difference in the com¬
position of the concrete between the mortar that was used dh the
eighth ami ninth floors and that which was used below? A. It
was all exactly the same. Well, the roof slabs were composed of
cinders, sand and Portland cement, instead of gravel, sand and Port¬
land cement.
Q. Why was that difference made? A. Localise it made a strong
enough concrete for the roof which does not carry the weight that
floors do, and was lighter.
Q. What was the composition of the concrete that was used in
the topping? A. That was half sand and half Portland cement.
Q. Is that the proper proportion and the proper ingredients for
concrete for topping? A. It is; it is the same proportion that is used
bv the citv for granolithic sidewalks.
« • " ^
Q. ^ on were also questioned about resurfacing the concrete work.
Have you ever attempted to resurface concrete work? A.
387 I have, ves sir.
Q. With what result? A. It is very difficult to make the
new surface stick to the old; if it sticks it has got to be very care¬
fully done, and even with the utmost care it is impossible to guar¬
antee that the surface will stick to the underbodv after the under-
%■
body has once set.
Q. Was there any difference, in the quality of the mortar used
below the eighth floor from that used above? A. Xo sir; it is all
the same quality.
Q. After the concrete and mortar had set, is it possible for it
then to be damaged by changes in the weather? A. Xo sir.
Q. Some suggestion was made that possibly delay was caused by
vour failure to have sufficient teams to haul the stuff to the property.
Was there anv delav caused on that account? A. Xone whatever;
no sir.
Q. Was there any strike on the building after you had the first
trouble you had with the carpenters? A. I had no trouble with
the carpenters; I had with the bricklayers, a very slight trouble.
There was no strike and no delav after that, and that all occurred
•
before the first suspended floor was put in.
TRUSSED CONCRETE STEEL COMPANY.
177
Q. Mr. Magrini has stated that there was a lapse of time between
the discharge of the second gang of workmen and the employment
of a third gang—quite a few days elapsed. Do you recollect about
that? A. There was one day’s delay between the start of the
•188 second gang; we started with a less number of men on the
second day. but on the third day, I think, we had a full force
of workingmen; there might have been the loss of a day or possibly
a day ami a half.
Q. The contract makes some reference to the furnishing by the
Trussed Concrete Steel Company of a foreman for this job. Did
they furnish you with a foreman? A. I do not recollect whether
• «
they did or not.
(). Did you ever decline to accept any foreman? A. No sir; they
never offered to furnish any particular man that I recall.
Q. 1 believe that you stated that you started to construct this
building with how many forms of false work? A. Forms sufficient
for two uoors.
Q. Did you have any consultation with anybody about the num-
% • « t «j
her of forms that would he required? A. Yes sir.
(). Witli whom? A. With Mr. Layton F. Smith.
Q. Did Mr. Smith advise you about it? A. Yes sir; he told me
at urst that he thought-
Mr. Siddons: I do not think that is proper. I want to object to
any conversation with Mr. Layton F. Smith.
Mr. Clepiiane: Why?
Mr. Siddons: Because it is not proper redirect examination.
Mr. Clepiiane; Yes; this was all brought out on your cross ex¬
amination.
Mr. Siddons: A conversation with Mr. Smith about a fore-
389 man ?
Mr. Clepiiane: About the number of forms that were re¬
quired. You were cross examining Mr. Karrick at great length
about the forms.
Mr. Siddons: Very well, go ahead.
A. (Continuing:) Mr. Smith thought that forms for one and
one-half floors would be sufficient, but to make sure that we would
have enough we decided to make forms for two floors.
(). When you pulled Jhe floors out, were any portions of them
left standing? A. Generally there were; generally we left some
posts or studding under the beams, under the center of each beam,
to stiffen it and save it from any jar from the workmen overhead.
(). flow long were those left, as a rule? A. That depended upon
the condition of the concrete—from a week to two weeks, 1 should
say.
Q. Mr. Siddons has questioned you with regard to the thickness
of the walls in the building. Are those solid walls all the way up
to the very roof? A. The interior walls are not.
Q. Where do they cease to he solid walls, on what floor? A. They
are not solid on any floor; there are a great number of doors or panels
through the walls." The plans show that, but they run up to the
12—2057a
178
FIDELITY STORAGE CORPORATION ET AL. VS.
underside of the ninth floor, supporting the ninth floor, and then
above that they are not built exactly according to the plans—
390 above the ninth floor, supporting the roof, are only brick
columns.
Q Does that apply to all the partitions on the ninth floor? A.
Yes sir, above the ninth floor.
Q. \ on say there were openings or doors, &c., were there any
openings for windows? A. Not in the interior walls.
Q. Did those openings for doors or for other purposes require
to be concreted over? A. Yes sir, they were all concreted over, just
the same as the rest of the floors.
Q. There was also some questioning by Mr. Siddons on the con¬
ditions concerning the acceptance of this building, and you wen-
questioned with regard to the entry in the minute book of a penalty
of $*25 a dav for each day’s delav. Did vou toll us when the build-
ing was accepted? A. It was accepted, or I was relieved from the
penalty, January *25th, because 1 had two floors ready for storage,
but the building was not completed at that time.
Q. Was there any agreement or understanding between you as to
what you should do subsequently to that? A. We should finish
the building according to contract and make good any part that was
defective.
Q. Mr. Karrick, you were to hunt for specifications for this build¬
ing. Have you succeeded in finding them since you first commenced
vour examination? A. Yes sir.
Q. 1 will ask you to look at this paper, which I now hand you,
and tell us what that paper is if you can? A. (After ex-
391 amining.) These are the specifications for the building.
Q. Are those the specifications that are referred to in the
building contract between you and The Fidelity Storage Corpora¬
tion? A. Thev are.
Mr. Clephaxe: I now renew my offer of the building contract
and include in it the specifications which were not offered at that
time.
The specifications referred to are filed and marked Complainant’s
Exhibit J. L. K. No. 1A.
Q. I believe you stated you were paid in stock and bonds instead
of in cash. At what price was this stock and were those bonds
taken by vou? A. Both taken at par.
Q. You were starting to explain to Mr. Siddons why so little
appeared in the minute book when he stopped you and suggested
that it was not germane to his question. I would like to have you
finish what you were saying in that regard.
Mr. Siddons: The question is objected to as calling for unrespon¬
sive and volunteer statements of the witness, and not proper re-direct.
A. I do not recall that question. I can state now that the secre¬
tary has been in very ill health for the last year and a half or nearly
two years, and that has been the main reason why the books have not
been entered (is they should have been. She has undergone two
operations in that time and has been quite ill.
TRUSSED CONCRETE STEEL COMPANY.
179
392 Recross-examination.
By Mr. Siddons:
Q. Mr. Karrick, you spoke of a nine days’ interruption in your
work of construction when you were ready for the material for the
eighth Horn*—I suppose it is the seventh suspended tloor—due to
freezing weather? A. No; not due to freezing weather; those delays
were in receiving the material. It was the delay between the time the
steel should have arrived and the receipt of the steel.
Q. I did not refer to that. You then went on to say that there
was a delay of nine days due to freezing weather? A. There were
nine days of freezing weather in that time. I did not say that there
were nine full days; 1 did not mean to say that there were nine
full days of freezing weather.
Q. Ilow much of that loss of time was due to freezing weather?
A. There was delay each day in freezing weather, but just how much
each day I could not tell you.
Q. Then when you refer to nine days in connection with freezing
weather you did not mean to be understood as saying that there
was a delay of nine days due to freezing weather? A. No sir; I did
not mean that.
Q. And that you are not now able to state how much of the nine
days or what proportion of the nine days, there was any delay
393 due to freezing weather in that period? A. In a general
way I would state this, that as near as we can figure it there
was a loss of about 25 per cent each day in the labor.
Q. For how many days? A. That would be nine days.
Q. Of freezing weather in the first part of November, 1905? A.
Yes sir—not the first part it was about November the 20th; the
steel was received on November 20th so that it must have been the
latter part of November, between November 20th and November the
30th, was when that floor was put in.
Q. And in the period between those dates, November the 20th
and November the 30th—that was the time when there were delays
due to freezing weather? A. Yes sir.
Q. But you do not know how many days? A. There were nine
days of freezing weather in that time.
Q. Between November 20th and November the 30th? A. The
time we finished the floor I cannot say; we finished the floor on
November the 30th, and from November the 20th until we finished
the floor there were nine days, and I think it may have taken more
days on that particular floor. It usually took us ten days to put in
a floor, and where there was very bad and freezing weather it took
us longer.
Q. How are you able to fix that there were nine days of
394 freezing weather in that period, beginning with or after
November the 20th, as the case may be? A. I remember
distinctly the delay and the trouble we had in the freezing weather,
and the exact number of days I get from the weather report.
Q. Now, after November the 30th, how many days’ delay were
there due to freezing weather, or time lost on account of freezing
FIDELITY STORAGE CORPORATION ET AL. VS.
ISO
weather after November 30th? A. I think about 25 or 30 per cent
of our labor was lost after that time.
Q. Lost because they were required to do something else? A.
Required to protect the work, and they had to quit early because
the freezing would begin and it would be unsafe to put in concrete
when it would begin freezing within an hour or two afterwards.
Q. The steel that you used in the foundations of that building
is what is called the steel footings, were they not? A. Yes sir.
Q. That was all that you used in that, is it? A. That is all.
Q. And the next occasion you had for the use of reinforced steel
concrete was when vou were readv for the first suspended floor? A.
x r •
i es sir.
Q. Mr. Clephane asked you about the doors in the inside walls of
this building; there were two such inside walls running the whole
length of the building, were they? A. Yes sir.
395 Q. IIow many doors were there in each wall? A. 1 would
have to look at the plans to tell exactly. They varied ac¬
cording to the floors. We put in just as many openings as we could
and still left brick enough to sustain the floors. On the lower floors
we had very few of those because they had to sustain an enormous
weight, but as we went up we made more openings.
Q. But you are unable to tell how many openings there are on
each floor? A. I can tell by looking at the plans. I can come
pretty close without them. I think there were 33 doors, 33 open¬
ings in the length of one of those interior walls on the seventh and
eighth floor-.* I am not positive about that—that is the seventh
and eighth floor-, counting the upper floor of the building.
Q. The sixth and seventh suspended floors? A. Yes sir. One of
those openings is quite a long one, about 22 feet, I think; that is
a large opening, and the others were about 3 feet wide. Those are
the inside walls, on each inside wall.
Q. Of those two floors? A. Of those two floors. I think there
are the same number of openings on each floor. The plan will show
all that. You can tell in a minute by looking at it.
Q. There was {In'-: large opening of 22 feet in width? A. Yes sir.
Q. And the rest of the openings were how wide? A. About 3
feet wide.
396 Q. Those were the openings made necessary to form the
compartments in which goods were stored? A. Yes sir; we
made the compartments on the upper floors more than on the lower
floors because we could put in more openings. On the lower floors
we could not put in sufficient openings.
Q. Do you know the number of openings on the fifth and sixth
floors, counting the ground floor as one? A. I would not try to
recall that because it is so much easier to look on the plans.
Q. In calculating as you did the floor space there, at an early stage
in your examination when you were interrogated about it by Mr.
Clephane, that is in the early stage of your examination in chief—
in calculating the amount of lumber you used for your false work
centering and flooring, did you make allowance for the inside walls?
TRUSSED CONCRETE STEEL * COMPANY. 181
A. No sir, because there is so much waste lumber that the difference
would be so little.
Q. Did you make allowance for the outside walls? A. No sir,
the same way. It would not be customary to do that in figuring
lumber. You would run short every time.
Q. You took then the full width of the building from the outside
wall to outside wall, and its full length from outside wall to outside
wall, and calculated accordingly? A. Yes sir; we always do that
in estimating the surface for lumber, or concrete, because we count
on waste; the waste would more than offset any difference
397 taken out for the thickness of the wall.
Q, Mr. Karrick, why was it that a foreman was not fur¬
nished you by the Trussed Concrete Steel Company under its con¬
tract? A. Because I discovered this man Magrini and I asked Mr.
Smith to talk with Magrini and see if he was a competent man.
Q. You had employed Magrini at that time, however? A. Yes
sir; I had employed him by the day, subject to Mr. Smith’s approval.
Q. Then you do not complain that the Steel Company did not
furnish you with a foreman under its contract? A. No sir; I never
have.
Q. The minutes of the Fidelity Storage Corporation I understand
you to say, have not been regularly written up because of the con¬
tinued ill health of the secretary? A. Yes sir.
c.
Q. Was there any record kept at all of the corporate action?
A. Yes sir.
Q. What record? A. The minutes have been taken ready to be
transcribed into the minute book..
Q. Who did that? A. Most of them were taken by Mrs. Karrick.
Q. At the time of the meeting? A. At the time of the meeting.
Q. And it is only a matter of transcribing that memoranda,
398 or whatever vou choose to call it, into the minute book in the
regular way; the data is in Mrs. Karrick’s possession or some¬
one’s possession, from which the minutes may be regularly written
up, such as do not now appear in the book? A. I mean those that
do not appear in the book are not there because she has neglected to
do it largely on account of her ill health.
Q. Now as to any of the records or minutes that do appear in the
minute book, were they written up subsequently to the actual hold¬
ing of the meeting? A. All after the meeting, yes sir.
Q. Who keeps the letters that correspondents send to the Fidelity
Storage Corporation, and to those that they have occasion either to
write to or receive letters from? A. They are all in the office of the
Fidelitv Storage Company.
Q. The secretary of course has not been active as secretary, in
the real sense of the word, has she? A. No sir; only secretary
of the board.
Q. And in the actual management and control and direction of
the affairs of the Fidelity Storage Corporation, you are the head?
A. Very largely.
Q. You are the only executive head, are you not? A. I do not
know that I quite understand that point. We have a superintendent
182
FIDELITY STORAGE CORPORATION ET AL. VS.
beside myself. 1 am the treasurer of the corporation, and have the
general management of it. I think that is what you mean.
399 Q. Yes. The president of the corporation is not the active
president of it, is he? A. No sir.
Q. Nor is the secretary, but the treasurer, yourself, is? A. Yea
sir.
Q. And that has been the case, has it not, from the beginning,
Mr. Karrick? A. If you mean from the inception of the idea, or
from the incorporation of the company; it is a little hard for me to
explain. There was another man who was very much interested in
this company in the beginning, whom we expected to be interested
financially-
Q. That was Mr. Morris? A. Mr. Morris, yes sir, and he took an
active part in advising in making these contracts and in enforcing
this penalty, and in things of that kind.
Q. As a matter of fact, he was not an otiicer of the corporation,
was he? A. lie was never formally elected an officer, but it was
intended that he was to be president of the corporation, and it was
expected that he would be.
Q . But bevond his connection with the matter as you have dis-
closed it, from the beginning you have been the active administrative
head of the company, have you not? A. Since Mr. Morris practi¬
cally withdrew I have been the active head of the company.
Q. You purchased the property on which the building is located,
did vou not?
400 Air. Clepiiane: Objected to as not being cross examina¬
tion.
A. Yes sir.
Q. You had the title to the property which was subsequently con¬
veyed to the Fidelity Storage Corporation? A. Yes sir; 1 had it in
my name.
Q. Mr. Karrick, who prepared these specifications? A. Beecher,
Friez and Gregg, the architects.
Q. Were those specifications closely and absolutely followed in
the actual construction that occurred there, or did you depart from
them? A. There was a slight departure, but only one as I recall
now.
Q. What was that? A. The specifications call for a front cornice
to be built of galvanized iron; we built that of reinforced concrete
instead.
Q. And there were no other changes? A. I do not recall any
other change in the specifications. There were one or two slight
changes in the plans.
Q. I believe you state that you had no architect to superintend
the construction : vou did that vourself? A. Yes sir ; I did that.
Q. So that if there were any departures from the specifications,
or changes, you would know it? A. Oh. T would be familiar with
it if I had not forgotten it. There may be some little things that I
have forgotten in all this time, but 1 do not recall any.
Q. Now, with regard to the discussion which took place with
TRUSSED CONCRETE STEEL COMPANY.
183
reference to a possible change in the character of floor con-
401 struction from the solid concrete to tile concrete, I under¬
stand that the change did not take place, but that you ad¬
hered to the original plans? A. Yes sir.
Q. But if you had been convinced that you might have saved
money in making the change, vou would have made it, would you
not? '
Mr. Clepiiane: I object to the question as immaterial and irrele¬
vant.
A. There are a good many points that would come in there, Mr.
Siddons, whether the change would Dike place; first, it would be
whether the Washington Loan and Trust Company would agree to
the change because they had agreed to advance money on those
bonds, the building to be built according to the plans and specifica¬
tions. T would have to get their permission.
Q. The question was not so much directed to that, probably it
misled you. So far as you were concerned or the company was con¬
cerned—1 mean the Fidelity Storage Corporation was concerned—
if there could have been a substantial saving effected by this change
of floor construction, assuming that you could have gotten the con¬
sent of anv one else whose consent was needed, vou would have made
the change, would you not?
Mr. Clepiiane: The same objection.
A. T think I am pretty safe in saying that it would have been
done if T was satisfied that it was equally good and I could have
saved money and could have gotten the consent of the people neces¬
sary, but it never got that far. We never asked the con-
402 sent.
Q. I understand that. A. The building inspector would
be a person who would have to pass on that mode of construction as
well as the Fidelity Storage Corporation.
Mr. S'iddons: That is all T care to ask.
Counsel for the defendants here announce the elose of their testi¬
mony. and thereupon an adjournment was taken to meet on notice
for the purpose of proceeding with rebuttal testimony.
JAMES L. KARRICK.
Sworn to and subscribed before me this 19th day of Jan., 1909.
ALEXANDER H. GALT,
Examiner.
184
FIDELITY STORAGE CORPORATION ET AL. VS.
403 Testimony in Rebuttal.
Filed April 22, 1909.
In the Supreme Court of the District of Columbia.
Equity. No. 26091.
Trussed Concrete Steel Co., Complainant,
vs.
Fidelity Storage Corporation, Defendant.
District of Columbia,
County of Washington, ss:
He it remembered that at an examination of witnesses begun and
held on the 28" day of January, A. D. 1£^9, and continued from
time to time until the 20" day of March, A. D., 1&99, when the
within depositions were taken: I, Alexander II. Galt, an Examiner
in Chancery, did cause to be personally present at the office of Wal¬
ter C. Clephane Esquire, Feudal! Bldg, in the city of Washington,
in said District, Frank II. Sprouse, Layton F. Smith and Eldridge
H. Hoyle to testify on the part and behalf of the complainant in re¬
buttal, in a certain cause now pending in the Supreme Court of the
District of Columbia, wherein Trussed Concrete Steel Co. is com¬
plainant and Fidelity Storage Corporation is defendant.
Which said examination was had after due notice and at which
on the day aforesaid, there were present F. L. S'iddons, Esquire, for
the complainant, and W. C. Clephane. Esquire, for the defendants.
ALEXANDER H. GALT,
Examiner.
404 Washington, D. C.,
Thursday, January 28, 1909—3:30 o’clock p. m.
Met pursuant to agreement at the offices of Messrs. Ralston & Sid-
dons, Bond Building, 14th — and New York Avenue Northwest, on
the above date, for the purpose of taking testimony in Rebuttal on
behalf of the complainant in the above entitled cause.
Appearances: Frederick L. Siddons, Esquire, Solicitor for the
Complainant; and Walter C. Clephane, Esquire, Solicitor for the de¬
fendant Karrick.
Whereupon Frank II. Sprouse, a witness produced by and on l>e-
half of the Complainant in rebuttal, being first duly sworn, was ex¬
amined and testified as follows:
By Mr. S'iddons:
«/
Q. I wish vou would state where you reside and what vour occu-
pation is. A. At present I am residing in Baltimore, No. 403 West
Twenty-third Street; occupation, caq>enter and general construction
work.
TRUSSED CONCRETE STEEL COMPANY. 18“)
Q. Are you acquainted with Mr. Janies L. Karrick of this
405 city? A. Yes sir.
Q. Were you ever employed by him on a storage ware¬
house he constructed on U Street, the south side, between Fourteenth
and Fifteenth in this city? A. Yes sir.
Q. What was the nature of your employment? A. Well, in fact,
he placed me there as general foreman.
Q. Did you yourself do carpenter’s work on that job? A. Yes sir.
Q. Can you tell us when it was that you went to work for him on
this building? A. Yes sir.
Q. When? A. The 11th day of May.
Q. What year? A. I cannot remember.
Q. If you cannot remember, let me ask you this question. When
you went to work for him on this building at what stage of progress,
if anv. had it reached? A. None at all.
(J. Any excavating done? A. Yes sir; I started it.
(). And then began your work there about the time of excavation,
or had it been completed? A. I laid off the work.
(J. You laid off the work? A. Yes sir.
(}. IIow long did you continue in the employ of Mr. Kar-
40 ) rick upon this job? A. Well, sir, to the best of my knowl¬
edge I think it was along in October.
Q. Of the same year? A. The same year, yes sir. 1 do not know
the exact date, but the time book probably will show it.
Mr. Siddons: You will be able to produce those time books.
Mr. Clephane: If we can find them. I do not know where
they are. Mr. Karrick is at his house. I telephoned him a couple
of days ago that this meeting was to take place but he was not there.
1 suppose they gave him the message.
Q. During the time of your employment by Mr. Karrick on this
building, did you have anything to do with reference to the rein¬
forced steel concrete work that was put in there? A. I looked after
the job in general.
Q. Did you have anything to do in the preparation of what has
been called forms, false work? A. Yes sir.
Q. \\ hat did von do in that connection? A. I had the entire
construction.
Q. The entire construction of what? A. In putting up the forms.
(j. From the beginning? A. Yes sir.
Q. I wish you would state, if you can. how many sets of forms
with reference to a floor were made for that job during the
407 time you were there. A. We had one full set.
Q. And any more? A. Part of another.
Q. I wish you w’ould tell us, in the use of these forms when, let
us say, one form was completed and the reinforced steel concrete
laid there, what was done with the forms? A. They had to stand
about eighteen days. We were supposed to let them stand 22 days.
Mr. Clephane : I object to so much of the testimony as states the
witness’ supposition, as being irrelevant and immaterial.
The Witness (continuing:) Supposed to stand 22 days, and
186
FIDELITY STORAGE CORPORATION ET AL. VS.
being short of forms, in order to pu.-h the job along we had to take
them down.
Q. And then do what? A. Put props under the beams for safety.
Q. What would you do with the forms you took down? A. Trans¬
fer them to the next floor.
Q. During any time while you were employed on this job, did
you have, or were there there, two full sets of forms for two Moors?
A. .no sir.
Q. (Exhibiting to witness a paper.) Now 1 show you the plan
of the seeond floor introduced in evidence by the defendant, and
ask you to indicate, if you can. on that plat, just how many forms
you had. A. (After examining same.) It did not come any fur¬
ther than this (indicating). This was the last small beam
408 we had on the second floor, because there is a large one that
comes in here (indicating).
(Witness indicates the third beam from the elevator opening
shown on the plan from the left.)
Q. Xow looking at tho plan of this floor, you had one full set of
forms for a floor, and then forms enough to carry you to that beam
which you indicated in your previous answer, Is that correct? A.
Yes sir.
(). Mr. Sprouse, how frequently were you at the building during
the period that you were employed by Mr. Karrick? A. After-
wan Is?
Q. No; during the time. A. During the time?
Q. Yes. A. I usually got there some mornings at six o'clock,
sometimes at half-past six, and sometimes at seven.
(). Do vou mean everv working dav in a week? A. Every work-
ing day in a week I was there promptly at mv post.
Q. Now during the whole time that you were employed upon that
job by Mr. Karrick, Mr. Sprouse, was the work at any time delayed
by the non-arrival of the steel after the footing steel had been re¬
ceived? A. Xot to my knowledge.
Q. M ould you have known it if the steel had not been there? A.
I eertainlv would.
«
100 Q. Were there any delays upon the job during the period
of your employment there for any cause? A. Yes sir.
Q. What delays, and what cause or causes? A. During rainy
weather.
Q. Can vou tell us how much of a delav rainv weather caused at
any one period, or during the whole period? A. Some weeks we
would not more than get in three or four days. M r e would have to
work tho majority of the time in rain, even at that.
Q. That was during what part of the period? A. I think that
was in the month of June.
Q. In June you had rainy weather? A. Yes sir.
Q. M as there any rainy weather subsequent, to your recollection?
A. Tn what wav do vou mean?
• •
Q. M'ns there any rainy weather that delayed you subsequent to
that? A. Yes sir.
TRUSSED CONCRETE STEEL COMPANY.
Q. Can you tell us when? A. In the month of June.
Q. I mean after that? A. No. After the month of June we had
pretty fair weather. We made good progress.
Q. Now before you left the work had eold weather set in? A.
We would have to use tar paper and canvas on top of the
110 cement, to keep the top dressing of the concrete from freezing.
Q. When did you begin to do that with reference to the
time you were working there? A. 1 think it was in the latter part
of September.
Q. September? A. Yes, I think so to the best of my knowledge.
Q. That you had freezing weather in September? A. Frosty
mornings. There was always frosty mornings. When it gets to
frost it is getting down below freezing.
Q. Then it was that you put on some of this tar paper and can¬
vas that you speak of? A. Yes sir.
(>. Before you loft was there any distinctly freezing weather, what
you call freezing weather, at all? A. No sir.
Cross-examination.
Bv Mr. Clephane:
w. ill you explain to me something about this plan? The front
of the building is on a portion of the plan lettered Beam E just over
the words “Second Floor Plan.'' A. That ought to show it on the
section here—Beam E.
Q. Let me get at it in this way. Is the front of the building the
site of this plan which 1 have just lettered in pencil A B extending
along here, along from A to B? A. Here is E B (indicating).
Those are large beams. ,
111 Q. Which is the front of the building? A. Here is the
front (indicating).
Q. Running from where to where? A. Running from U street
to the alley.
Q. That is the front of the building? A. It surely must be. I do
not. see any other way. If you turn it around this way (illustrating)
here is V street and the elevator is on the allev side bv the blacksmith
9J
shop.
(). Then the front of the building runs along the alley, as I under¬
stand you. A. Oh no: what are you trying to get at?
Mr. Clepiiane: 1 am trying to have you explain.
The Witness: You mean von are trying to get me mixed up.
Q. N ow what is the front of the building as indicated on that
plan? A. That is it right here (indicating).
Q. That does not indicate anything. Show the Examiner what
you mean by the front of the building. A. Here on U Street (in¬
dicating) .
(). Where? A. This is U street running along here (indicating).
Q. You mean the line from the letter I have just put there in
pencil labeled C to the letter I have just put there in pencil labeled D.
That is the front of the building? A. Yes sir.
188
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Where does that run—on I street? A. Yes sir; 1420.
412 Q. Then the set of forms which you say was incomplete
ran hack from V Street? A. Yes sir.
Q. To the beam which you referred to awhile ago? A. ^ es sir.
Q. One full set? A. Yes sir.
Q. That full set ran all the way hack to the hack of the building?
A. Yes sir; two hundred feet.
Q. I am speaking of the incomplete set that ran hack from l
Street to the beam which you referred to a minute ago. A. Acs sir.
Q. Or did it run to the rear of that beam? A. No sir.
Q. Now you left there in Octol>er, as I understand? A. To the
best of my knowledge.
Q. Ami you went from there to Baltimore? A. From there?
Q. Yes: did you? A. No; T did not go to Baltimore then.
Q. Where did you go then? A. i remained in Washington up
to last week.
Q. For whom were you working from the time you left Mr. Kar-
rick until you went to Baltimore? A. 1 had charge of several large
jobs—C. D. Cassidy and John L. Marshall.
(>. Did vou go directly from Mr. Karriok to Mr. Cassidy?
413 A. No sir.'
Q. What did you do before you went to Mr. Cassidy and
after you left Mr. Karrick? A. 1 went to Foil Myer.
Q. On construction work there? A. Yes sir.
Q. For whom? A. W. IT. McKay.
Q. Was there any interval of time between tin' time you left Mr.
Karrick and the tilin' you went t<> work D• r Mr. McKay? A. About
• * w.
three days.
Q. Do you recall the reason why you left Mr. Karrick? A. Me?
Q. Yes. A. Tie put a timekeeper there', and I turned my time
over to him. and asked the timekeeper in the morning for leave to
come down town to transact a little business for myself.
Q. W ho was the timekeeper? A. 1 do not remember his name
now at all.
Q. And you got that leave, did you? A. Yes sir: he granted it
to me.
Q. Then what happened? A. Mr. Karrick came there and
wanted to know where T was at.
Q. Well then, why did you leave him? A. And he told
414 me that Mr. Karrick wanted to see me.
Q. The question was. whv did you leave Mr. Karrick? A.
Me?
Q. Yes. A. I took it for granted that he had some one else *>
put in my place, and asked the timekeeper for my time.
Q. Then he paid you off and you left? A. The timekeeper gave
me my time. T wrote it out myself and brought it down and handed
it to him right in hi< office on C Street at that time.
Q. Then you left him? A. Yes sir.
Q. You left entirely at your own volition? A. Yes sir.
Q. He did not request you to leave? A. No sir. TTe said to me.
“Sprouse, you are doing the wrong thing.” T said. “I cannot help
it, Mr. Karrick, I am going to do it.”
TRUSSED CONCRETE STEEL # COMPANY.
189
Q. Then you went to work at Fort Myer? A. Yes sir.
Q. I low long did you stay there? A. I staid there about six
weeks.
Q. That was until about the middle of December, was it? A. A
few davs before Christinas, ves sir.
• •
Q. Had there been any freezing weather before that time? A. Oh
ves; I should sav so.
415 Q. A good deal of it. had there not? A. Yes sir.
Q. During the time you were at the building did Mr. Kar-
rick lay off any men from time to time? A. Yes sir; certainly he
did. If he did not lay them off, I did.
Q. Whv did von lav them off? A. When a man does not do a
day’s work 1 had the privilege to lay him off. Tie granted me that
privilege.
Q. If there was not work there for them to do I suppose you laid
them off also? A. 1 will tell you. During my time there there was
not any delay in laying them off. This is on account of having
material on the ground.
Q. T did not ask you that. The question I asked you was whether
when there was no work for the men to do he would lay them off.
A. Well, when there was no work for them to do there T put them
off.
Q. If you did not have any occasion to use them you laid them
off? A. Yes sir: they knew there was nothing to do then.
Q. That sometimes happened, did it not? A. Yes sir; when it
was rainv weather.
Q. That happened several times, did it not? A. Yes sir; it cer-
tainlv did.
416 Redirect examination.
Bv Mr. Siddons:
Q. When you said that Mr. Karrick said to you, “You are doing
the wrong thing." what did he refer to? A. Why, I suppose he did
not want me to leave the job.
Q. Then lie did not discharge you himself? A. No sir.
Q. Now when you spoke of laying off any men there for not doing
his work, not doing a day's work, or for any other cause, what men
do vou refer to? A. Laborers.
«
Bv Mr. Clepiiaxe:
#>
Q. Some of those laborers working on the concrete work? A.
Yes sir.
Bv Mr. Siddons:
Q. If any laborers engaged on the concrete work were laid off
by you, what were they laid off for? A. Simply because they would
not do what I required them to do.
Bv Mr. Clepiiaxe:
Q. There were times when you did not have work for some of
those men, were there not? A. When it was raining. It was not
because we did not have material on the grounds.
190
FIDELITY STORAGE CORPORATION ET AL. VS.
417 Q. What makes you think that? A. Would you like to
work out in the rain all day?
Q. What makes you think it was not because there was no ma¬
terial on the ground? A. What makes me think that?
Q. Yes. A. Because we always kept it ordered ahead.
(). Did it alwavs come as it was ordered? A. It certainly did.
Q. How do you know that? A. It would not have been there
if it had not been ordered.
Q. That is the only wav you know it came, that it was ordered?
A. That is correct.
(J. You do not know when any of it was ordered? A. Why, the
sand and gravel if I did not order it Mr. Clark did.
Q. You always had sand and gravel? A. Yes sir.
{} .There was never any deficiency in that? A. No sir.
Q. You are sure about that? A. While I was there I was never
short.
Q. Never short of sand and gravel? A. No sir.
(}. And you were there from May to October? A. Something
like that. I cannot, postively tell the time.
4IS Q. Were you ever short of steel? A. No sir; not during
my period there.
<T Referring again to this steel, you say it always came as ordered.
Can you give us any one time when Mr. Karrick ordered any steel?
A. I do not know what he ordered.
Q. You do not know what he ordered and you do not known when
he ordered it? A. No sir.
Q. You do not know when he ordered it to come? A. No sir.
O. You do not know when it actually came? A. Yes sir; I saw
V fr
the wagons come there.
Q. I low many wagons did you see come there and when? A.
lie had four wagons.
Q. When did these wagons come? A. You ask me something
1 do not know anything about.
Bv Mr. Siddons:
(J. Whenever they came enough steel was delivered there. Was
there any period during your time of employment on that building
that there was not on the ground ready for use steel for this rein¬
forced concrete work? A. You mean was there or was there not?
Q. Was there at any time during your employment by Mr. Kar¬
rick a period when you did not have on the ground steel for this
reinforced concrete work? A. I always had.
419 By Mr. Clepiiaxe:
Q. What did you know about the steel? You did not have any¬
thing to do with erecting the steel, did you? A. No; we had a gen¬
tleman there by the name of Mr. Hugo who was erecting the steel.
Q. You were the foreman of carpenters, were you not? A. Yes
sir.
(J. So you might see a great deal of steel on the ground and still
not know that that was the particular steel that was needed at that
TRUSSED CONCRETE STEEL COMPANY.
191
particular time. A. Retween him and I, 1 came pretty near know::;,
what he did and what he did not want.
(J. That is the best you can say in answer to that question? A.
I sav what he knew about the steel I did too.
Q. How did you acquire that knowledge? A. Me?
O. Yes. A. Thev would come to me and sav in this way: He
says “go ahead and push your forms up; 1 have the material here.”
Mr. Clepiiane: Testimony objected to as hearsay.
Q. Is that all? A. Is that not enough?
Q, Is that all? A. Is what all?
Mr. Siddons: All of what?
Mr. Clepiiane: All he wants to sav in answer to that
«.
4*20 question.
(). Is that the onlv wav vou know? A. W hen the material was
% t • •
there hadn't I two eyes?
Q. How could you tell when you saw steel there that it was the
particular steel that was needed at that particular moment? A.
Don't the plans show what it needs? The numbers are on the
plans.
Q. Did you investigate to see whether the numbers on the steel
surely on the ground corresponded to the numbers on the plans,
and were actually on the ground and ready to put in whenever you
got your forms constructed? A. Yes sir.
Q. You did that? A. Yes sir.
Q. Every time? A. No sir; not every time.
(J. Dow many times did you go over the field and compare the
steel on the ground, number by number, with the numbers on the
plans? A. How many times did T?
Q. Yes. A. On two or three different occasions.
Q. When was the last time you did that? A. I got so familiar
with the iron it did not require me to go over it every day.
(). Can vou answer when the last time was that vou did that? A.
* • V
No sir: it is too far back.
421 Q. Was that any portion of your duty? A. I was trying
to work for Mr. Karrick’s interest.
Q. Was that any portion of your duty to Mr. Karriek to ascertain
if you thought there was the requisite steel on the ground to put in
the building whenever it was needed? A. He did not ask me that
question.
Q. He never told you to bother about that at all? A. He told me
to look after his interest.
Q. And you construed that general direction to you as foreman
of the carpenters to look out if his interest required you to ascertain
whether the requisite steel was on the ground to put in the building
in each case, did you? A. Yes sir.
Q. How much of this steel did you measure? A. T did not meas¬
ure any of it.
Q. Do you mean to say that you went over the ground and exam¬
ined this steel to see whether it was a proper steel to put in the build¬
ing without measuring any of it to see? A. The numbers were
FIDELITY STORAGE CORPORATION ET AL. VS.
192
marked on the iron and also on the plans, and we knew exactly
where to place them.
Q. What were the various lengths of these steel bars? A. That
is too far back for me to answer at the present time.
Q. You cannot tell now whether they were Id, 18 or T2 feet, or
not? A. Some of them were 2*2 feet.
Q. Which ones were *2*2 feet? For what was that steel
4*22 used? A. It was used for the beams.
Q. The building was how wide? A. Sixty feet.
Q. Divided into how many sections? A. Three sections includ¬
ing the outside wall.
Q. How wide was each section? A. Give me that paper there.
Q. l>o you need a pencil and piece of paper to figure out how wide
each section was? A. No sir; I want the plans.
Mr. Olephaxe : I do not propose to give you the plans now.
The Witness: Thank you. Just keep them.
Q. I ask you from your recollection, if this building was divided
into three sections how wide was each section? You say the building
was sixty feet wide? A. Yes sir.
Q. How wide was each section; do you recall? A. If you give
me those plans I can tell you. I cannot tell how wide.
Q. ^ on cannot tell how wide they were now? A. No sir.
Q. Were they of equal width? A. Yes sir.
Q Then if a building is 00 feet wide, divided into three equal sec¬
tions, you cannot tell how wide each section would be? A. I can.
ves.
423 Q. Now tell us. A. Divide it bv three and that will give it
to you.
Q. What is that?
Mr. Siddons: I submit the witness is not obliged to engage in a
mathematical calculation.
Mr. Clepiiaxe: I submit it the witness is not capable of dividing
. cl l 1 tl 11 til e result, he is not capable of giving such testimony
as he is giving here.
Q. You cannot divide fit) by three? A. Yes, I can.
Q. What is the result?
After a pause-
Mr. Clepiiaxe (to the examiner): State right here that the wit¬
ness hesitates.
Mr. Siddoxs: 1 object to comments of counsel going into this
record.
Q. Do you need a pencil and piece of paper? A. No; I can figure
it out.
Q. Then figure it out please. A. (After figuring.) Twenty feet.
Q. Now you are foreman of carpenters? A. Yes sir.
Q. And it has taken you at least five minutes to figure out-
A. Not that exactly; no sir.
Q. It has taken you about five minutes to figure out one-third
of 60. A. Five minutes?
TRUSSED CONCRETE STEEL COMPANY.
11)3
Q. Yes. A. Yes.
4*24 Q. It has taken you five minutes? A. Yes.
Q. Now having arrived at the width of each-section as be¬
ing twenty feet, are vou sure it is 20 feet?
Mr. Siddons: 1 want to get in an objection to the question before
that, that five minutes elapsed in making the calculation, nor one-
third of five minutes in my judgment.
Mr. Clkpiiaxk: 1 will ask the Examiner to certify in his judg¬
ment how much time it was. 1 regard that as quite important.
Note: The Examiner thinks it was not over one minute.
Mr. Siddons: Counsel for Complainant objects, as the Examiner
is not a witness.
Q. Now, after having made that
one-third of sixtv is twentv? A. Ye?
(). You are sure of that? A. Yes;
Q. Then each section was 20 feet?
calculation you are sure that
*, twenty is one-third of sixty,
three times twentv is sixty.
A. From the outside to out¬
side was 20 feet.
Q. How is it possible for you to get out a 22 feet beam in a 20
feet section? A. Because on the first floor we had about ten inches
on tne wall and tied in on the other section.
(J. Is that the only explanation? A. That is all.
Q. So these beams did not run in a straight line from end
425 to end across the building, did thev? A. Sure.
Q. They did? A. Yes.
Q. Then three of those 22 feet beams would have made how many
feet across? A. Sixty-six feet.
Q. The building is onlv sixtv feet wide from outside to outside.
A. Yes sir.
Q. IIow is it possible then for the beams to be 22 feet long? A.
The beams?
Q. Yes. A. The iron.
Q. Well, how is it possible for the iron to be 22 feet wide? A. In
order to tie the opposite beam together.
Q. They were tied together end to end. were they not? A. Yes
sir; certainIv.
«
Q. In a straight line right along? A. Certainly.
Q. Did one beam overlap the other any? A. One iron.
Q. Well, did one iron overlap the other? A. Undoubtedly.
Q. H ow did it overlay) it? A. We had to throw one end beside
the other.
42t) Q. Throw one end alongside of the other? A. Yes sir.
Q. ITow much would they overlap? A. About 12 inches.
q. Are you familiar with reading plans and building from plans?
A. Somewhat; ves sir.
Q. You are? A. les sir.
Q. Now point out to me on those plans any place where the beams
overlap. A. The beams when thev are finished do not overlap.
Q. W1 lat does overlap? A. The iron.
Q. The iron overlaps inside of the concrete. Are you sure about
that? A. What are you trying to make out of me any how?
13—2057a
194
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Are you sure that the iron overlaps inside the concrete? A.
Certainly.
Q. And they overlap the ends about a foot, do they? A. To my
best knowledge.
Q. In each case? A. In each case.
Q. Is that so with each beam in the building? A. It does on the
1st, 2nd and 3rd floors. When it goes up the walls get narrow.
Q. The ends do not overlap then? A. They are used for the same
purposes.
Q. I)o they overlap after the 3rd floor? A. They run on
427 about an average.
Q. What do you mean by they run on about an average?
A. Even.
Q. Q. On the 1st, 2nd and 3rd floors the iron and steel overlap
on each side of the concrete? A. Yes sir.
Q. Hut over that it does not overlap? A. About even; that is my
best knowledge.
Bv Mr. Siddons:
Q. Have you gone over this matter or seen that plan that Mr.
Clephane just showed you since you left the job and until 1 showed
it to you the other day? A. No sir.
Q. Within a week? A. No sir.
Q. When you were answering Mr. Clephane’s questions just now
about the length of the pieces of steel for beams and otherwise, about
which Mr. Clephane interrogated you, were you speaking from mem¬
ory only? A. That is all.
Q, Have you had occasion since von left that job and until I
spoke to vou about the matter within a week to think about it at all?
A. No sir.
Q. Counsel for defendant has produced a time book? A. Yes sir.
Q. That is said to represent the time of the various men
428 who were employed upon this job that you have been testify¬
ing about? A. Yes sir.
Q. And according to this book your name last appears on it as
employed during the week ending August 25, 1905. and Mr. Har¬
riet states from that book vou did not work that full week but left
after working a couple of hours on Thursday of that week.
Mr. Karrick: August 23.
Q. In other words, on August 23. Now in the light of what this
book shows, what have you to say as to when you left that job? A.
It seems to me I was there longer than that. There must be another
time book.
Q. 1 do not know anything about that. This is a book introduced
by Mr. Karrick. I>o you know who succeeded you on the job? A.
Parker—a man bv the name of Parker. I think.
Q. You can say no more about it than that? A. No sir.
Bv Mr. Clephane:
&
Q. Did you work on the job while Parker was there? A. Yes
sir.
Q. How long? A. About a week afterwards.
TRUSSED CONCRETE STEEL COMPANY.
195
Q. No more than a week? A. No sir.
It was mutually stipulated and agreed by and between
429 counsel that the signature of the witness to the foregoing
deposition be waived.
Sworn to before me this 28th day of January, 1909.
ALEXANDER II. GALT,
Examiner.
Adjourned subject to notice.
Washington, D. C., February 9, 1909.
Met pursuant to notice at 10:80 o'clock a. m. on the above date
at the office of Frederick L. Siddons Esquire, Loud Building, Wash¬
ington D. C., for the purpose of resuming the taking of testimony
on behalf of the complainant in Rebuttal.
Present: Frederick L. Siddons Esquire, solicitor for the complain¬
ant; Walter C. Clephane Esquire, solicitor for the defendant Karrick;
also the defendant Karrick in person.
Whereupon Layton F. Smith, a witness of lawful age, produced
on behalf of the complainant, in rebuttal, having been first duly
sworn, testified as follows:
Bv Mr. Siddons:
430 Q. Mr. Smith, please state your full name, your residence
and occupation? A. Layton F. Smith; residence, Baltimore,
Md.; 1 am what is known as the sales manager and engineering rep¬
resentative of the Trussed Concrete Steel Company in this territory.
Whilst I have no real title, that is about what 1 am supposed to be.
Q. How long have you been connected with the Trussed Con¬
crete Steel Company? A. About five years.
Q. What are vour duties in that connection? A. They are rather
varied. As a rule they consist of preparing estimates on reinforced
concrete construction work, according to the Kahn system, for
owners or builders of projected buildings, of endeavoring to land the
contract for the steel reinforcing, and. in some case', preparing the
plans showing the construction myself, and in other cases permit¬
ting the Detroit office to do the same.
Q. How long have you been engaged in engineering work of this
character? A. Of this particular character—reinforced concrete—
about five years.
%!
Q. Have you had any engineering experience in the matter of
building construction beyond that? A. Yes sir; f have been in the
engineering construction business about seventeen years.
Q. In private or public employment? A. Mostly public.
Q. Where? A. On the Baltimore Belt railroad, city
431 hiidge engineering in Baltimore, the building of blast fur¬
naces in Pittsburg and Wheeling, as consulting engineer for
the National Surety Company of New York, and sundry other things.
Q. Have you any professional connection of any sort with any
organization? A. I am associate member, of the American Society
of Civil Engineers.
196
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. You know Mr. James L. Karrick, one of the defendants in
this case? A. Yes sir.
Q. When did you make his acquaintance? A. Some time prior
to the signing of that contract; I could not say oifhand just when.
Q. Who negotiated that contract with Mr. Karrick? A. I did.
(1. After the work of actually constructing the storage ware¬
house—in this case the Fidelity Storage warehouse that was being
built on U Street, did you make any visits to Washington to the
building—to the work of construction? A. Yes sir; quite a number.
Q. Would you meet Mr. Karrick on those occasions? A. Some¬
times I would, and at other times he was not there.
Q. Can you recall your first visit to the building operations, and
can you state what stage had been reached in it when you first saw
it? A. I am not sure that I was there when they were put-
432 ting in the foundations but the next visit that 1 recall was
when Mr. Karrick, I think, had part of the forms up for the
first suspended floor, just alter that heavy rain that came along.
That is the first definite recollection I have.
Q. To what period—determining the matter by the stage of con¬
struction or building—to what period in that construction did your
visits continue; how late, in other words, in the building construc¬
tion, did your visits to it continue, approximately? A. I really
could not tell; 1 do not remember whether I was there after the roof
was on or not, but I have an indistinct recollection that I was. I
did not examine the building; T was just there for a few minutes
possibly. *
Q. Between the time after the foundations had been laid and
before the roof was put on, were your visits sufficiently frequent so
that you observed tin* work of construction of the intermediate
floors, the suspended floors? A. I believe it was until, say, some¬
time in December—something of that sort.
Q. December ot what year? A. 1 do not remember what year it
was—1904 or 190d. 1 have forgotten now.
Q. Was it the December following the making of the contract?
A. Yes sir.
Q. In addition to this building in which this Kahn system of re¬
inforced steel concrete was placed, have you seen and observed.
^ a ( t ' _ t{ 1 ltli tlic construction of other buildings
in which the same system was used? A. Yes sir: quite a
number.
433 Q. Any as high, that is with as many floors as this one?
A. No; not personally.
Q. This building, as you probably know. Mr. Smith, has nine
floors to the roof; from your knowledge of the system, your knowl¬
edge as a constructing engineer in building operations of this
general character, with special reference to the installation of this
Kahn system, how many sets of forms, or centering, or false work.
t ^ ^ . e 1, are required to attain the best results in the
construction of such system or installation, both with reference to
the speed of construction and the care requisite to securing the most
permanent results of the system?
Mr. Clephaxe: The question is objected to on the ground that
TRUSSED CONCRETE STEEL COMPANY.
197
the contract provides that the stool material shall be furnished
a- desired, which left it optional with the defendant Karrick to
proceed with the building as rapidly or as slowly as he cared to
proceed with it.
A. Not less than three sets of forms.
Q. Now when you sav not less than three sets of forms, I wish
you would state just exactly what you mean by three sets of forms?
A. 1 mean centering sufficient to erect forms for full three floors.
Q. This building is, from outer wall to outer wall, sixty feet in
width, and from outer wall to outer wall, two hundred feet in depth.
Does the answer that you have just given—and remembering, of
course the number of floors in the building—apply to this
434 building? A. Yes sir.
Q. I low many set> of forms did Mr. Karrick actually have
at any time in this building on the occasions of your visits to it,
that von saw? A. Mv recollection now. and mv opinion at the time
was that he had a little bit more than 011 c set of forms.
Q. Did he ever increase the amount, that you know? A. I do
not know anything about that at all.
Q. Beyond the matter of forms and centering, did you observe
the plan that Mr. Karrick had for carrying on this work? A. Yes
sir.
Q. Of what did that consist? A. Ordinary hand tools, a concrete
mixer, a hoisting engine, or double cage hoists, and a boiler and
maybe some other things that did not interest me at all.
Q. Did not interest you, why? A. Because they had no bearing
on the carrying on of the concrete work.
Q. Do you recall the mixer, to which you refer, that Mr. Karrick
had there? A. Yes sir.
Q. What was it? A. It was what is known as an Improved
Chicago Cube Mixer—T think that is what they term it—Improved
Chicago Cube Mixer. That is a technical name for it.
Q. Do you know what its size and capacity was? A. I think
it was a six cubic foot capacity, but of that I am not
sure.
435 Q. What do you mean bv that? A. I mean that one batch
was supposed to turn out six cubic feet.
Q. When and where did you first see that mixer? A. At a
Railway Appliance Exposition over here. I think, on the White
House lot. thev call it.
Q. Were you in anybody’s company at that time when you saw
it? A. T do not recall whether T saw it with Mr. Karrick, or
went at his suggestion.
Q. If you went at his suggestion, what was the purpose of your
going to sec it? A. I think I had better modify that. I had
charge of our exhibit there and whilst there went around to see
the various machinery applicable to concrete work. I believe I
saw that mixer then, and afterwards Mr. Karrick referred to it.
That was about the way it was.
Q. Did you have any conversation with Mr. Karrick at any time
regarding the purchase of the mixer? A. Yes sir.
108
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. I wish you would state, in h distance at least, what that con¬
versation was? A. Mv recollection is that Mr. Karrick—who was
«
then in the market for a concrete mixer—had visited this Exposi¬
tion and seen the mixers there and decided to buy this particular
one. As I recall it there were three of that same style of mixer
on exhibition, and three different sizes, this being the smallest—
and Mr. Karrick asked my opinion of the mixer. I told him
488 that the Chicago Improved Cube Mixer was an excellent
mixer, hut the small one was, in my opinion, too small a
mixer for the work that he had to do.
Q. To do where? A. At this warehouse; that if he intended buy¬
ing one of those mixers T would recommend buying one of the
larger size.
Q. Which one did he in fact buy? A. He bought the smallest
one they had.
Q. Now considering the work he had to do there, under the plans
and specifications of the building, and assuming, according to Mr.
KarrickV claim—that he was to complete this building on Novem¬
ber 15. 1005, in your judgment was that mixer sufficient size to en¬
able him to do it? A. Although I did not know that he was to com¬
plete the building by the time specified, at that time. 1 recommended
a larger mixer, and believe the large mixer would have been of more
sendee to him, and more likely to permit him to finish by that
time.
Q. Why? A. On account of its increased capacity for turning
out the concrete.
Q. Now bearing in mind the size of this building and the number
of floors it was to contain, the system of reinforced steel concrete
that Mr. Karrick had adopted for installation there—from your
knowledge of those facts, coupled with your general knowledge of
the character and method of installing that svstem in such a build-
ing. will you state whether or not Mr. Karrick had an outfit or
plant, or the means available for the purpose of effectively
187 and speedily constructing this building?
Mr. Clephaxe: The question is objected to upon the ground that
the witness has not. up to this point, shown a sufficient familiarity
with the plant of Mr. Karrick to be able to answer the question.
Mr. Siddoxs: 1 will withdraw the question for the moment to
overcome my friend’s objection.
Q. I wish you would state just what part you played, or took, in
assisting the work of installation in this building, T mean after
vour contract was made: after vou had made vour estimates that vou
« • * i •
have alluded to. were you recalled upon to do anything particularly,
were you consulted by Mr. Karrick or requested to come over? A.
T think Mr. Karrick and I had several talks, one in which T rec¬
ommended to him not to buy this small mixer, as it was too small,
and we discussed something in the line of hoisting apparatus. At
that time we were using a double-cage hoist in a building in Balti¬
more that T was putting up. and finding it very unsatisfactory, and
if T do not mistake, I suggested to Mr. Karrick that he arrange to
have two hoists at quarter points of the building, either in the shape
TRUSSED CONCRETE STEEL COMPANY.
199
of a derrick, or just an ordinary hoist, to hoist a bucket of concrete
up; they might l>oth be operated from the same hoisting engine
by means of the engine having drums; that I myself had found the
double-cage hoist so unsatisfactory that my recollection is T recom¬
mended to him not to use it. I might also say here that it is used
\erv often hut our company ascertained that it was unsatisfactory,
and in none of the buildings which they have put up since
438 that time have they used that type.
Q. What would have been the advantage of having this
hoisting arrangement, to which you have referred, at the quarter
points of the building, and just what do you mean by the quarter
points of the building? A. Well, taking this sheet of paper (in¬
dicating) as the building, the dividing line here, the quarter points
would be there (indicating). My object in that is that the men
could concrete at this end and build centers without in any way
interfering with the bricklayers who were working at this end, so that
the concrete forms, lumber could be hoisted at this end on this
hoisting apparatus, be it a derrick, or anything else, and could be
used without conflicting with the bricklayers who were working at
this end in getting their brick up.
Q. Tn addition to what you have just said, did you have occasion
to familiarize voursclf with the plans of this building? A. T should
imagine so. T saw them very often.
Q. For what purpose? A. Tn order to see how the work was to
be carried on. and at times when Air. Karrick asked questions, and
when his superintendent asked questions, to explain it.
Q. Who was the superintendent ? A. The man who usually asked
me questions when Mr. Karrick was not around, was Mr. Hugo
Magrini.
Q. Where would these questions asked by the superintendent, he
asked—what place? A. Fight on the building itself.
130 Q. T will now repeat the question to which Mr. Olephane
objected a moment ago. Rearing in mind the size of this
building, the number of floors it was to contain, the system of rein¬
forced steel concrete that Mr. Karrick had adopted for installation
there—from your knowledge of these facts, coupled with your gen¬
eral knowledge of the character and method of installing that sys¬
tem in such a building, will you state whether or not Mr. Karrick
had an outfit or plant, or the means available, for the purpose of
effectively and speedily constructing this building?
Mr. Clephane: T repeat my objection.
A. No sir.
Q. Perhaps at the risk of repetition. I will ask you to state in what
particular or particulars was the plant inadequate? A. I considered
that the mixer was smaller then he should have used; that the double-
cage hoist was not as efficient for the work they had to do, which
consisted of not only hoisting the centering, where it had to be
hoisted, but the concrete, brick and mortar also—that the number
of forms were not sufficient.
Q. Did you ever have any conversation with Mr. Karrick about
the number of forms that he had in use there? A. Yes sir.
200
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. What was the substance of the conversation or conversations?
A. Well, only in a general way. that I thought he ought to have
more forms than he did have.
-140 Q. Did he make any reply to that? A. I do not remember
anything in particular.
Q. Did Mr. Karrick request you to come over to the building? A.
Yes sir. at various times.
Q. And what was your response to such requests?
Mr. Clepiiane: Were those responses in writing?
Mr. Sidpoxs: 1 cannot tell; some may have been. 1 do not re¬
member.
Mr. Clepiiane: T object to the witness testifying as to the con¬
tents of any letters. Any verbal resj>onses that lie may have made,
or responses over tin* telephone. I do not object to.
Mr. Siphons: I am not asking him for any except in the event he
received such requests, what responses he made to them.
A. In the majority of eases 1 came over at the time set. or we
had some correspondence-
Q. You must not give the contents of correspondence. A. We
had some, hut just what it was 1 do not recall.
Q. Mr. Karrick has testified in this case that up to—if my memory
serves me correctly—including the sixth floor that he never removed
any of the centering or forms without first securing your consent.
What have you to say to that? A. Well. I cannot he specific as to
the exact number of floors hut I do know that on what you might
term the first suspended floor. 1 came over and sounded that
141 with, as 1 recall it. a large hammer, or something of that
dc-cription. to find out whether or not the concrete was set.
and gave a sort of ring, to find out whether or not T thought it was
advisable to remove the center. I may have done it with other
floor.- but 1 cannot state specifically how many.
Q. What is the time usually required to keep these forms in place
after the concrete has been placed in them in order to insure the best
results, that is permanent and efficient results? A. Our rule is
three weeks.
Q. Irrespective of the rule, to which you have just referred, what
is the proper length of time, as determined by your observation and
experience in this hud ness? A. Three weeks is the minimum to
take out the centering. At times we may do what we term ‘‘rob’’
the centering, that i< take pieces out here and there—something of
that sort, hut we leave the main centers in for fully three weeks.
Q. I.et me see if I understand the expression ‘‘rob the centering
do you mean by that that some of the support may he removed? A.
Yes sir: dispensed with.
Q. But some is still left? A. Yes sir.
Q. When may that robbing safely he done? A. Tt would depend
absolutely on the condition of the concrete and the load which it is
carrying above.
Q. Mr. Smith, were there any changes to bo made in the
44*2 matter of the roof construction from what had been originallv
designed in this building? A. The original estimate was
TRUSSED CONCRETE STEEL COMPANY.
201
based on the bosuns being placed about seven feet on centers, and
later, at Mr. Karrick's suggestion, they were made fourteen feet.
It was decided, on Mr. Karrick’s suggestion, that they be fourteen
feet on centers to double the spacing.
Q. Have you any means of determining when the subject of this
change in the construction, which he referred to in the roof, was
fir-t taken up by Mr. Karrick? A. I do not know that T can recall
that: it. wa> during the summer time some time.
Q. Can you tell us when you saw Mr. Karrick first with reference
to securing his definite determination about this change—about when
it was? A. Not exactly.
Q. Was it in the fall of 1005? A. Tt was after the summer.
Q. I -how you a letter from Mr. Karrick to you, dated October
1*2. 1005. which has been offered in evidence, and call your atten¬
tion to the last sentence but one in that letter, and ask vou if that
refreshes your recollection at all as to the time when you took up
with Mr. Karrick definitelv the changes that he desired in the roof?
( After examining letter.) Yes
(Act. 12. according to
this letter.
Q. Did you have an interview with Mr. Karrick after receiving
this letter from him. of October 12, 1005? A. Yes sir.
4Id Q. What was the object of that talk or conversation? A.
The object of the talk was to decide definitely on how the roof
was to be constructed. There were several questions which came up
a> regards that roof, one of which was the load to be brought on the
roof l»v the shelve beams of the elevator, and just how the sheeve
1 teams ’wore to hi* placed in order to take care of the loads imposed
on the roof thereby.
(>. During that visit, or conversation with Mr. Karrick, following
this letter of October 12, 1905, did you receive from Mr. Karrick
anything definite regarding this design or these changes in the roof
construction? A. Yes sir; T do not recall whether it was a blue¬
print or a sketch plan, prepared by Mr. Karrick or the architect, but
in nnv event whatever it was. it was sufficient to enable us to prepare
the final plans for the roof.
(). Tn that connection, 1 wish you would tell us why it was neces-
- irv f<>r you. or for the Trussed Concrete Steel Company, to receive
from Mr. Karrick. or the architect—if it was necessary—the plans
of this building at all? A. I hardly know how to answer that ques¬
tion. Mr. Karrick was the owner and he had-
Q. I ask why it was necessary that you should see. or the com¬
pany should see. the plans? A. Because we were not his architects;
we onlv make our plans from plans prepared by the architect.
Q. Then was it necessary for the company, or you acting for it.
to receive either from Mr. Karrick, or his architects the plans
444 of this building? A. Yes sir.
Q. For what purpose? A. Tn order that we could make
our design to suit those plans, and to carry the loads on the general
arrangement of the building.
Q. What plans did the company have to make, and for what pur¬
pose? A. They made the reinforced concrete plans in order to show
how the concrete and steel were to be placed.
202
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Was that necessary with reject to the roof? A. Yes sir.
Q. What became of the sketch or plan of this roof construction
that you received from Mr. Karrick after this letter of October 12,
1905? A. I believe 1 returned them to Mr. Karrick.
Q. Why did you return them to him? A. lie must have re¬
quested it.
Mr. Siddons: I offer in evidence at this time a letter from the
witness to Mr. Karrick, dated October 20, 1905, together with the
sketches referred to in that letter «is being enclosed.
Mr. Olepiiane: Notice to produce this letter was only served
upon me this morning, and the letter is produced because it hap¬
pened to he in my office. The plans referred to, however, were never
brought to my office, and I was unable to get into communication
with Mr. Karrick sufficiently earlv to enable him to make search for
• •
those plans prior to this session. The copy which is tendered now
by Mr. Siddons, therefore, will have to be taken subject to
115 comparison and correction with the original sketches, if those
can be found.
Mr. Siddons: Counsel for complainant agrees that if counsel for
defendant. Karrick. will produce the original of the sketches he
would prefer that they should go in with the letter just offered, and
admits that Mr. Clephane has hardly had an opportunity to get hold
of the sketches under the circumstances which be has just stated. If,
however, he i> unable to produce the enclosures, being the sketches
referred to in this letter, then the copy of the sketch is offered in
evidence.
The letter offered in evidence is marked Complainant's Exhibit,
Kebuttaf No. 1. and is hereto attached.
Q. Cpon receiving from Mr. Karrick this sketch, or sketches of
the roof, what did you do? A. 1 must have made a sufficiently clear
copy of that to forward t<> my home office with information to enable
them-
Q. You must not state what you must have done. I only want
to know what you did, if anything. A. I sent a copy of the draw¬
ing to the home office for them to be able to complete the plans for
the roof.
Q. Do you know whether or not the steel requisite for this roof
construction work, and in conformity with the sketch in question
was delivered to Mr. Karrick? A. 1 believe it was.
Q. It is in testimony by the defendant, or his witnesses, that where
the topping or surface of the concrete, which is used as a part of
your system of reinforced steel work has been frozen that it
44b is extremely difficult, if not impossible to replace it. What
have you to say as to that? A. I would say that there are
preparation?* on the market which will enable you to replaee topping,
and it will adhere as well as if it had been put on originally.
Q. Can you give us an example of that material? A. There is
a material on the market by the name of “Living Stone” which will
do that.
Q. After the work of construction of this building had commenced
was there any talk between Mr. Karrick and yourself regarding any
jx>ssible change of construction, other than the roof? A. Yes sir.
TRUSSED CONCRETE STEEL COMPANY.
203
Q. Wlmt was it? A. Mr. Karrick wanted to know if it would be
cheaper to construct the Moors with what is known as our hollow tile
construction.
Q. Can you tell us about when that came up, if you can recall?
A. As 1 recall it. it was after the plans for the building had been
practically completed and work had commenced.
<y The work having commenced, if the change that was under
discussion between you had been determined upon by Mr. Karrick,
would that have required a change in plans, so far as the reinforced
steel work was concerned? A. 5 es sir; if he had abolished entirely
our plans, which had been completed, the steel on the ground would
have been valueless and the centers which were made would have
been of no use whatever.
447 Q. As a result of that discussion, to which you have just
alluded, did you write to Mr. Karrick about the matter? A.
Yes sir.
Q. I show you a letter dated July K, 1905, from you to Mr. Kar-
rick. already offered in evidence and ask you to state if that is the
letter? A. (After examining letter.) I think that is the letter.
Q. Hid you ever have any talk with Mr. Karrick after this letter
had been sent to him about the subject? A. I imagine so.
(y l»ut did you; I want your best recollection on the subject? A.
1 cannot saw 1 should think I did.
ty Do you recall whether you did? A. No sir, T do not. recall.
(y M as the change referred to here made? A. No sir.
(y When did you first make the acquaintance of Mr. Hugo
Magrini. who has testified in this case? A. At the warehouse
proper.
(}. Do vou mean this warehouse? A. The Fidelity Storage ware¬
house.
Q. How did you come to know him—who introduced you? A.
Mr. Karrick introduced me to him.
(y What did Mr. Karrick say in introducing you—why did he
introduce you, do you recall? A. Because he was the man
44<S he had selected to handle the concrete work.
(y Had you ever heard of Mr. Magrini up to that time?
A. No sir.
(y W hat was Magrini doing there; what was .his work? A. I do
not know that I can answer except that when I saw him there he
was superintending the putting in of the steel concrete.
Q. Did you see him after that time? A. Numerous times there,
ves sir.
(y Did you have any opportunity for observing his competency
for tht' work he was doing? A. Just on the job, yes sir.
(y What was your judgment of his work? A. I was very well
pleased with the way he handled the work.
Q. Did you talk with him? A. A number of times.
(y Both as a result of the talks that you may have had with him,
and your observation of the way he was superintending the instal¬
lation of the reinforced steel concrete, with the equipment that had
been provided him by Mr. Karrick, what have yon to say as to his
competency for the work he was undertaking to do there? A. I
thought he was amply competent.
204
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Had you over heard of him before you were intro-
449 «luced to him bv Mr. Karrick? A. No sir; I had never heard
*
of him.
Q. On pages 234 and 235 of the record, Mr. Karrick testified,
among other things—and referring t<> the design for the roof con¬
struction that “it was suggested. I think, by Mr. Smith (you) that
possibly a simpler design, or 1 will put it. another design, should
be made for the roof that would save us both money, one that would
save me putting in so much concrete, and would save the Steel
Company in lessening the amount of steel. The second design was
submitted by Mr. Smith which was the one finally adopted, and
they sent the steel for that second design, and that is the one which
is in the building now.' What have you to say, Mr. Smith, about
that statement, in so far as it relates to you? A. The suggestion
never came from me—the suggestion of the change. The original
estimate which I made was based on the beams for stays, the same
as the floor beams, seven feet on centers and on account of the fact
that the load would be less-
Q. What do you mean by the load being less? A. The live load
on these beams would be less than the live load of the beams in the
floors.
Q. That is the load on the roof would be less? A. Less than the
floor beams, and it would not be necessary to make the beams in the
roof as large as the beams in the floor: that would necessitate the
making of new beam boxe> for the roof beams a> the boxes for the
floor beams could not be used there, and Mr. Karrick was anxious
to avoid making so many beam boxes in the roof, and he asked me
if he could not increase that span twice, that K put practi-
450 rally only one-half the number of beams in so as to lessen
the expense of making the beam boxes, and after discussion,
that was decided upon. But it was not incorporated in the roof
plans until we got the final plans from Mr. Karrick because we
could not make any plans.
Q. On pages 258 and 250 of the record. Mr. Karrick. in testify¬
ing stated that the fourth and fifth suspended floors were shipped
together, “and there was a further delay of two days on account of
the extra time which it took to handle those two floors which were
shipped at one time.” Can you tell us what delay could have oc¬
curred because of those two floors being shipped together? A. The
delav would have been in hauling only.
Q. Wa s there any difference between the steel of the fourth and
the steel of the fifth floors that you recall? A. They were the very
same: the steel for one floor would answer for the other floor.
Q. Then how would the hauling delay it? A. The man might
not haul to the building anything that could be used at the point
where they were ready.
Q. And it was only in that event? A. That would be the only
event that T can conceive of.
Q. Do vou know anything about some change in the pier work
of the building of your own knowledge? A. Yes sir; I remember
TRUSSED CONCRETE STEEL COMPANY. 205
Mr. Karrick *s telling me of one of the piers in front of the building
being laid out wrong and having to be taken down and rebuilt.
Q. Can you tell us about what stage of the progress
451 that was? A. I believe it was below the second floor.
Q. What do you mean by the second floor? A. I mean
the first suspended floor; that is my recollection.
Q. Then it was at a comparatively early stage of the construction
of the work? A. Yes sir, at an early stage.
Q. Did you ever have any discussion with Mr. Karrick relating
to the method of treating the work of installation of this concrete
system with reference to cold weather, freezing weather? A. I do
not recall anything particularly.
Q. You do not recall whether he ever sought your opinion or judg¬
ment as to how he should act in. protecting the steel work—the re¬
inforced concrete steel work—against possible freezing? A. We may
have had a general conversation on the subject. I do not recall
giving him any particular instruction as to how to do it.
Q. The question, of course, is not whether there may have been
such a conversation; the question is was there? A. I do not recall
anv.
Q. On page 14 of the defendants' testimony, Mr. Karrick testi¬
fied about the precautions that were taken to prevent this concrete
from freezing, and he states, “Those precautions I talked over with
Mr. Layton F. Smith and did what he suggested was the
452 proper thing to do to prevent freezing/’ Do you recall any
such conversation, or any conversation with Mr. Karrick in
which, as stated by him, he told you these things? A. I recall
none.
Q. Did you see the steps that Mr. Karrick did take to prevent the
freezing in this building? A. I do not remember seeing them.
Q. Have you read Mr. Karrick’s testimony as to what he did, or
caused to be done, for the purpose of preventing the freezing of the
concrete? A. Yes sir.
Q. What have you to say as to the method that he resorted to
for this purpose? A. Well if he did exactly what is said there,
and kept his fires going. I would say that it should have prevented
freezing.
Q. Was it under all the circumstances of the case the best method
of preventing it? A. There are other methods advocated by differ¬
ent people but 1 believe that would be satisfactory. There are others
that might be more so.
Q. At page 214 of the defendants’ testimony, he having been
asked if he had ever notified the Trussed Concrete Steel Company
that he would be subjected to a penalty of $25.00 a day for any
delay after Nov. 15, 1905, under his contract with the Fidelity
Storage Corporation, he replied: “I do not think I did in writing.
1 think 1 did talk to Mr. Smith about that penalty, but I am not
quite positive about that,” T wish you would state whether
453 or not Mr. Karrick at any time in any way advised you that,
first, he was under an obligation to complete this building
b v November 15, 1905, and that if he failed to complete it by that
206
FIDELITY STORAGE CORPORATION ET AL. VS.
time he would be subjected to a contract penalty of $25.00 a day
for each day's delay thereafter? A. No sir.
Q. Did you ever learn from anv source, or in any wav, that Mr.
Karrick was under a contract with the Fidelity Storage Corpora¬
tion which contained conditions such as those two? A. No sir.
Q. Mr. Smith have you gone over the figures that Mr. Karrick
testified to as to the amount of lumber he had to use for the false
work, centers or forms? A. Yes sir.
Q. What have you done in going over them; just what was your
process; what did you do? A. Well, I made a calculation based
on the sizes given by Mr. Karrick in his testimony, and also on
tlie sketch which he submitted, and worked out the approximate
number of feet, board and measure required for a square foot of
floor.
Q. Now on page 210 of his testimony, correcting previous testi¬
mony that he had given with regard to the number of feet <>f lum¬
ber in the forms, and in that previous testimony he had said that
he used 150,000 feet but the correct amount was 250,000. I want
to ask you if. having 250,000 feet of lumber, and using the sizes
that Mr. Karrick testified he did use, and with reference to the
sketch that he made in giving his testimony, the dimensions
454 of the building which was to be occupied witli this reinforced
steel concrete, what have you to sav as to the likelihood of
Mr. Karrick having to use 250,000 feet of lumber, bearing in mind
also that the defendants' testimony is. in substance to the effect that
he had two complete sets of forms until towards the close of the
work when he made an extra half form, that is half a floor, if I
coriectly state it? A. I would say that he did not have 250.000
feet there.
Q. Assuming that he did have that much, and he used it all
for the purpose that he testified to, how many complete sets of forms
for use in that building could he have made from that lumber? A.
About five and one-third floors, and in speaking of five and one-
third floors. I mean total dimensions, 00 by 200 feet, not net dimen¬
sions between walls.
Q. Now as a matter of fact in making those forms and bearing
in mind the size of this building, would the forms occupy a space
of 00 multiplied by 200, the width of* the building, multiplied by
200. the whole of that space? A. Yes sir, according to my calcu¬
lations.
Q. Suppose you make some allowances for waste, which Mr. Kar¬
rick testified was necessary and proper, would that substantially
change vour figures at all? A. No sir: I have allowed for waste.
Q n aving gone over Mr. Karrick's testimony, and referring to
that portion of it in which he has given estimates of material that
he had to use, and for which he is claiming reimbursement
455 from the company by way of damages, beside this 250,000
feet of lumber, about which vou have testified, is there anv
* «
other calculation which you made? A. Yes sir: T made a calcula¬
tion regarding the cost of centering of that extra half set of forms.
Is that what you mean?
TRUSSED CONCRETE STEEL COMPANY.
207
Q. Yes. Your calculation is based on what? A. It is based on
Mr. Karrick's testimony as corrected, because he corrected his testi-
mony, and his corrected testimony is to the effect that he used
48,000 feet of lumber. If he had used 48,000 feet of lumber, in
accordance with the sketch, lie could have ceiUered a whole floor,
not a half a floor. He also stated that the cost of that to him was
$1714.00, which is at the rate of *20VI* cents a square foot while
the ordinary contractors would not allow more than twelve cents for
the same work.
Q. On page *27)0 of the defendants’ testimony, Mr. Karrick, testi¬
fying as to the number of feet of board measure the beam boxes
required or took, he was asked this question:
“Q. And there would lx* 7>0 feet of board measure to each beam
box nine feet long, or eighteen feet long? A. Nine feet long or 100
feet hoard measure to each beam box or each section."
What do you say as to that? A. Based on Mr. Karrick’s stat“-
ment. somewhere in his testimony to the effect that although seven-
eight-s material was used in some of the beam boxes, two inch
material was used in others—it amounted to two inches in anv
450 event—a total beam box twenty feet long would require
approximately 184 feet board measure, whilst, according
to Mr. Karrick’s testimony, it woidd require *200 feet.
(). Did you make any other calculations, testing the figures given
by Mr. Karrick in his testimony, as to the material found requisite
to be used beyond those that you have stated, or have you given us
all? A. I believe 1 can make a slight correction about that extra
lumber. I think that the amount Mr. Karrick’s revised figures have
given for that extra set of forms, was 4*2,600 feet and the cost was
$1474.00. instead of what 1 have given, and the cost per square foot
was *24.0 cents and not 26W cents.
Q. And the effect of that is what, upon the alleged cost of it all
to Air. Karrick: was it reasonable or not? A. It was far from being
reasonable: it was excessively high. There is an item also in con¬
nection with that. Mr. Karrick. I believe, in his testimony charges
not only for the lumber and the making of the boxes but also the
putting up of the forms. That should in any event be deducted
because if he had his old forms ho would have had to put those up.
(Without concluding the direct examination of the witness Lay-
ton F. Smith, an adjournment was taken until Thursday, February
11, 1909. at *2 o’clock p. m.)
457 Washington, I). C., March 20, 1909.
Met pursuant to notice at 1.30 o’clock I\ M. on the above date, at
the office of Frederick L. Siddons, Esquire, Bond Building, Wash¬
ington. 1). C., for the purpose of resuming the taking of testimony on
behalf of the Complainant in Rebuttal.
Present: Frederick L. Siddons, Esq., solicitor for the complain¬
ant: Walter C. Clephane, Esq., solicitor for the defendant Karrick;
also hie defendant Karrick in person.
20S
FIDELITY STORAGE CORPORATION ET AL. VS.
Whereupon Layton F. Smith, being recalled for further evidence
in rebuttal, was examined and testified as follows:
By Mr. Siddons:
(y Did you ever, have a conversation with Mr. Karrick during
the progress of this building construction regarding the adequacy
or otherwise of the plant and equipment that he had there for install¬
ing this reinforced concrete? A. Yes; several such.
(J. What if anything did Mr. Karrick ever say to you about that
equipment or plant? A. Well, he told me lie was sorry he bought
the mixer, lie founu it too small.
(). Can von tell us about when that was? A. Bv reference
45<s to my letters I can. (After referring to letters.) July *2fi,
1 injo.
(y Did Mr. Karrick ever enlarge the plant or equipment for in¬
stalling this steel after this conversation? A. NO sir.
Q. On page MO of the defendants' testimony, Mr. Karrick testified
that lie consulted with you before he nought any of the appliances;
that they were approved by you. that you recommended this con¬
crete mixer yourself. 1 want to ask vou what have vou to sav about
• * t *
that statement of Mr. Karrick? A. I did all I could to induce him
to get a larger one.
ty Did you approve the various annliances to which he referred
in bis testimony? A. No sir.
(y On page 2M4 of Mr. Karrick*s testimony, Mr. Karrick stated
that you thought that forms for one and a half floors would be
sufficient, but to make sure that we would have enough decided to
make forms for two floors. What have you to say about that state¬
ment in so far as it refers to vou? A. I never said that one and a
half forms would be sufficient.
(y Would they have been sufficient? A. In my opinion, no sir.
<y On page 48 of tin* testimony, Gilbert Clark being on the stand
he was asked the effect of the freezing of the concrete work, and
whether it was noticeable upon the Moors, and in reply he stated that
the top would heave up from the base, what we call the top-
450 ping. What have you to say about that statement of his?
A. Before 1 answer that may I ask a question?
Mr. Siddons: Yes.
The Witness: Mav 1 refer mvself to anv testimony that has been
• • • •
given beside that?
Mr. Siddons: I mav ask vou to do so a little later. What have
• •
vou to say a> to the manner in which that concrete was laid. if. as
Sir. Clark testified here, freezing the top woujd heave it up from the
base?
A. I judge from what Mr. Clark states he means that the finished
separated from the main body of concrete below, and if that is the
case I would assume that that topping was not put on at the proper
time, that the bottom had sufficiently set before not to form a bond.
Mr. Clechane: The assumption of the witness is objected to as
not being in accordance with the rules of evidence.
TRUSSED CONCRETE 8TEEL COMPANY.
209
Q. You sav you would assume. Whv do you say you would as-
V ft %J ft/ ft/ ft/
sume it? A. I do not know of uiiy other reason that would cause it.
«/
Q. Where the base of the concrete has been allowed to set for a
considerable time before the topping is put on, and freezing there¬
after occurs, what would happen, and how would the freezing be
likely to exhibit itself, or the effect of the freezing rather? A. That
would depend upon several conditions. If the concrete below was
fully set before the topping was placed, and the topping was
400 of a moderate thickness suffieientlv thin that the cold would
freeze completely through it. it would have a tendency de¬
pending upon the amount of water at different places to cause the
topping to raise up from the bottom. The more water the more ice, *
and of course the greater the body of water in any one spot the more
likelihood there would be of this raising of the topping from the
bottom.
(). Then, if I understand you, if the concrete is not laid, the top¬
ping i.' not laid, sufficiently soon after the base and is not of the re¬
quisite thickness, then this heaving appearance that the witness tes¬
tified to is likelv to follow? A. Yes sir.
(). Mr. Smith, on page *21”) of the record Mr. Karriek testified with
respect to the material that he had upon the lot on which this build¬
ing is constructed and on the adjoining lot shortly after the third
of May. among other things, three million bricks. I want to ask
you if you have undertaken to calculate the number of bricks that
ft
went into that building? A. Yes sir.
Q. What was the result of that calculation? A. That there is
less than two million one hundred thousand bricks in the building.
(J. I show you a tracing (handing witness a paper), and ask you
to state what that is. A. (After examining same.) This is the
tracing which was prepared in my office in Haiti more from the in¬
formation given me by Mr. Karriek, so that the final roof
401 plan showing the reinforced concrete work could be prepared
in the home office at Detroit.
Q. Was that plan or that tracing you have in your hand drawn
from the sketch that you testified previously you received from Mr.
Karriek and returned to him in a letter that you wrote him dated
October 20, 1905? A. Yes sir; plus the little sketch I submitted.
Q. Plus the one that was introduced in evidence? A. Yes sir.
Mr. Siddoxs: 1 introduce in evidence this tracing that the wit¬
ness has just been testifying about.
(The same is hereto attached and marked “Complainant’s Re-
buttal Exhibit C. F. S. No. 1.)
I also offer the plans of the building that were shown to the wit¬
ness Boyle a few minutes since, as the plans received by the Steel
Company from Mr. Karriek and from which the steel plans were pre¬
pared.
(The same are hereto attached and marked “Complainant’s Re¬
buttal Exhibits, respectively, C. F. S. Nos. 2 & 3.)
14—2057a
210
FIDELITY STORAGE CORPORATION ET AL. VS.
C r o.»s-e x a m i n at i o n.
Bv Mr. Clephane:
Q. I believe vou stated when vnu were on the stand the other dav
with reference to the roof sketch which vou received from Mr. Kar-
rick, that you sent a copy of the drawing to the home office, for
them to l>e able to complete the plans for the roof. Is that
462 statement correct as you understand it now? A. Yes; that
is, the blueprint from that is what I sent.
Bv Mr. Siddons:
V
(2. Blueprint from what? You mean from this linen tracing that
was shown vou? A. Yes sir.
By Mr. Clephane:
(£. The blueprint which was made in your ofliee from the linen
tracing? A. Yes sir. I sent around the corner and had it made.
(^. From the linen tracing which you have just offered in evi¬
dence is the one you sent to the home office? A. Yes sir: in Detroit.
Q. W as this linen tracing you have offered in evidence the identi¬
cal tracing which was sent vou bv Mr. Karriek? A. No sir: what
lie gave me was returned to him. This was made up from that plus
that little sketch which had some additional information on it, that
little vellow sketch.
<>. So that this linen tracing which has just been offered in evi¬
dence is not intended to be a literal copy of the sketch which Mr.
Karriek sent to you? A. No sir, it is not, because it probably did
not have all the information on it that is on there.
Mr. Clephane: Now that being so 1 object to the introduction in
evidence of the linen tracing upon the ground that it is not a copy
and does not purport to be a copy of the sketch sent by Mr.
4(53 Karriek.
Q. It is the custom of the Trmt Concrete Steel Company, is it
not, to date the various plans and blueprints which are in its office?
A. I only judge so from that.
Q. You do not know, as a matter of fact, what the custom is? A.
No sir.
Q. But all these blueprints which you have just introduced in
evidence bear a date? A. 1 think so.
Q. Is it the custom in your office, which is in Baltimore, to date
plans and sketches which are prepared there? A. It is to-day. I
do not know whether it was then. Now I date everything that comes
in. unless it passes by accidentally.
Q. You cannot tell whether it was your custom at the time this
linen tracing was prepared? A. No sir; I can not.
Q. So after the blueprint which was made from that tracing went
to the truxt concrete steel people you never saw it again? A. No sir.
Q. Did they go to the office at Detroit or Pittsburg? A. Detroit.
Q. They had a Pittsburg office, did they not? A. I do not know
whether it was an office or shop. They probably had shops.
4(34 It was shops.
Q. And I believe you stated in your direct examination
TRUSSED CONCRETE STEEL COMPANY.
211
that you believed the steel in conformity with that roof sketch was
delivered to Mr. Karrick. .You do not know about that of your own
personal knowledge, do you? You did not see it delivered? A. No
sir; personally I did not see it delivered.
(y And you did not actually see it personally on the ground and
compare it with the sketch, did you? A. 1 do not know that I per-
sonallv saw the steel on the ground.
(J. 1)0 you know of your own personal knowledge that any change
was actually made in the construction of the steel for the roof
t j
from that which was originally intended? I am speaking now of
your own personal knowledge. A. Yes, I do know that.
Q. What is the source of your knowledge in that regard? A. The
source of my knowledge is 1 made the original estimate. I did not
make any plans for it, but just made rough sketches for my own in¬
formation, and from that estimate I took oft' the quantities which
would be required in a roof that had to be spaced just as the floors
below. 1 do know that that was changed and eliminated every other
beam, because I did see the roof plans which were sent on to Mr.
Karrick from which to build, and mv instruction from the home
ohice was to eliminate every other beam, which was done.
(J. But there was no change made in the actual size of the
lb.*) beam boxes, was there? A. 1 cannot tell without the plans.
Q. Was there any occasion to make any change in the size
of the beam boxes? I understand you to sav that every other beam
•V «/ *.
was eliminated. A. Yes sir.
(■}. That would leave the size of the beam boxes the same, would
it not? A. Not necessarily. If the beams are close together they
can be either narrower or shallower, just as you please. If the
spacing of these beams is to be twice as far apart, the beam would
have to be either wider or deeper depending upon various conditions.
So that beam boxes which were used for beams which were spaced
H feet apart might be absolutely useless for the beams which were to
be spaced 7 feet apart.
(y But the reason for eliminating every other beam was that the
roof was not expected to carry as much weight as the floors them¬
selves. A. That was the whole thing.
Q. That being so there would be no reason to change flic size of
the beam boxes, would there, by eliminating every other beam? A.
Are you asking me whether the boxes in the floor below would
answer for tbe roof?
<y Yes. A. I could not tell you off-hand, because I have not those
plans here.
Q. So that you do not know, as a matter of fact, whether
4b(l any change was made in the beam boxes themselves? A. No
sir.
(J. Or in the size of the beam boxes themselves? A. No sir. I
might say this, if the beams had been spaced in the roof as in the
floors then new boxes would have to be made, unless Mr. Karrick
wished to waste concrete. But bv eliminating every other beam it is
possible that the beam boxes for the floors would answer for the ones
in the roof.
Q. U any rate, the beam boxes were not made any smaller under
those circumstances? A. I cannot answer that without the plans.
212
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. And you have also spoken of certain suggested changes in the
method of construction from that originally specified as to the hol¬
low tile construction. Do you know whether that change was ac¬
tually made? A. Xo, no such change was made.
lb Pending your conferences with Mr. Karrick on that subject,
was any direction given to the home oHice or to the works to hold
back any part of the steel on that account? A. No sir; none what¬
ever.
Q. Mr. Smith, during the construction of this work you made a
number of visits to Washington 1 assume, did you not? A. Yes.
lb And at this late day you could not, of course, tell the date of
your first visit when you examined the foundations of the building?
A. I had nothing to do with the examination of the founda¬
tions.
407 lb Did you not make an examination of the foundations?
A. Xo sir. 1 may have been there when a part of the founda¬
tions was uncovered, but it was not my business to pass on tho
foundation.
Q. You cannot recall the date when you first visited the building?
A. 1 have no record of it.
lb Of course you could not tell the amount of time that elapsed
between that visit and the time of your next visit? A. No sir.
1}. You spoke of a second visit. I am referring now to page 28
of a second visit which you made, when Mr. Karrick had part of the
forms up for the first suspended lloor. Can you recall the date of
that visit? A. Have I given the date in my testimony?
lb No. A. I do not recall that. I might answer further that as
a rule 1 had four or five or maybe eight buildings going on at one
time, and it is very difficult to keep track of these different visits
about.
lb 1 suppose so. I did not suppose you would be able to tell that,
but you have stated in your testimony that you sounded the con¬
crete for the first suspended floor with a hammer. Have you anv
way of fixing the date of that? A. No sir.
Q. You cannot tell how long the forms had been in? A. No
sir.
4(58 lb Before you sounded that with a hammer? A. No sir.
l}. And you cannot tell how long a time elapsed in any
case before Mr. Karrick took the false work out? A. No sir.
lb So you do not know whether he actually took the false work
out at any time under three weeks or not? A. I do not know any¬
thin k about that.
lb The time that concrete takes to set depends very largely upon
the condition of the weather, does it not? In freezing weather it
would take a longer time, and in mild weather a shorter time? A.
Yes sir ; It depends to some extent on the kind of cement you use.
Q. Now there might l>e conditions of the weather when it would
be perfectly safe to take the forms out inside of three weeks, might
there not? A. 1 have done it on special occasions, but not entirely.
lb But you could not tell in the case of the Fidelity Storage
Warehouse building whether when you told Mr. Karrick it was safe
to take the forms out they had remained for three weeks or not?
A. I do not recall now how long they had been in. I knew at
TRUSSED CONCRETE STEEL COMPANY. 213
the time I asked Mr. Karrick. and the fact that I sounded the floor
is to my mind proof that they had been in three weeks.
Q. Tint on sounding the floor you told him you thought it
4fifl was safe to take the forms out? A. Yes sir.
Q. Do you not recall on one or two occasions you compli¬
mented Mr. Karrick on the speed with which the work was done?
A. I do not remember ever complimenting him on that.
Q. Do you not remember Mr. Karrick asking you questions about
how you thought the work was progressing, and you said it was pro¬
gressing finely; you were very much interested in it because it was
the first building of that kind which was erected here, and you were
very much pleased with the progress he was making? A. I compli¬
mented him at different times, but never on the progress he was
making.
Q. Then on what did you compliment him? A. One thing I
remember particularly, and that was a scheme for removing his
forms. Tie conceived the idea of making them in half with beveled
sides, so that he could remove them quickly. 1 remember particu¬
larly complimenting him on that. Another time 1 complimented
him upon his appliances of making blocks for his partitions, some¬
thing I had not seen or thought of before.
Q. How careful an examination did you make to ascertain just
what forms Mr. Karrick did start with? A. Of course T did not
count his beam boxes nor the amount of what he calls doors or any¬
thing of that character. Rut T remember of distinctly telling Mr.
Robinson, whose name appears on one or more letters submitted in
evidence, when he was on here, that Mr. Karrick was endeavoring to
erect that building with a little over one set of forms. So
470 1 must have known at that time approximately what he had.
Q. Rut you cannot now recall ever making a special ex¬
amination to see? A. No. A man can look at a building and see
what is there without counting up everything. It is very evident
that if T should walk over and along one floor and then go up on
another floor T would know practically what Mr. Karrick had there,
because that building is so easy to be seen.
Q. Your recollection of the number of forms he had was what?
A. My recollection is that he had little more than one set of forms.
Q. That is a set for an entire floor and a portion for another
floor? A. Yes sir.
Q. W as this extra portion you recall used at any time when the
entire set of forms for the other floor was in place? A. Undoubtedly
there were times when every one of the forms was in use. either being
I>ut. up or being taken down.
Q. Did you see the building at any stage of its construction when
more than one set of forms was actually in place? A. At one time?
Q. At one time. A. Yes sir.
Q. How far over the floor did the partial set of forms which you
say he had extend? A. Well, now, that is a question that
471 cannot be answered for this reason; if the entire set of forms
was in use in one floor, and he had all the others up, his men
would have to stop work. Tf he was putting up the empty boxes on
the floor above, he would be taking down the boxes filled on the
214
FIDELITY STORAGE CORPORATION ET AL. VS.
floor below. So that it is impracticable to say all the forms were in
use at one time.
Q. So that it would he impossible for anybody who is not actually
on the work all the time to tell just how many forms he had? A.
No. You are still able to tell how manv forms he has in use, bv
• «
seeing what is there lying on the floor.
Q. Then the only way you could tell as to the number of forms
he had was by seeing what happened to he up when you made an
inspection, and bv casually observing what was laving on the floor?
A. Yes.
Q. Referring to the conversation between Mr. Karrick and your¬
self. in which the subject of the number of forms which he ought
to have there was mentioned, I believe you stated that you did not
advise him to proceed with the building with as small a number as
one and a half set — forms? A. What T said was this. Before Mr.
Karrick began work we had talks at various times, and T told him
he would need three sets of forms.
Q. Rid you tell him that less than three sets might be sufficient
under any circumstances? A. No.
Q. Ro you not remember there was a discussion between
•172 you about the possibility of using a less number of forms than
that? A. T do not remember that. T remember Mr. Karrick
told me he did not have that many.
0. Rid not have as many as three sets? A. A>s.
Q. Were vour visits to the building made regularly or not after
the sixth floor was up? A. They were never made regularly at any
time T came when Mr. Karrick asked me. or when T happened to
he in town.
O Wa there any difference in the number and frequency of your
visit- after the sixth floor was up? A. There was no reason for any
difference except thi>. that when a building is first started as a rule
T make more frequent trips than where the work is progressing
satisfactorily and T am not needed.
Q Speaking about tlx* concrete mixer. T believe you stated that
you visited an exhibition on the White House lot when this concrete
mixer was on exhibition: and T think you also stated that there was
another concrete mixer there of a different size. Are you sure about
that, that there were two concrete mixers at this exhibition? A.
Three.
Q. And each of the three was of a different size? A. A T es sir.
Now the two large ones T will not say they were of different sizes,
hut there was a smaller one that was about of this size.
Q. How can you characterize this concrete mixer that Mr.
473 Karrick had as being of the size of the smaller of the concrete
mixers that you saw on the White lot? A. TTe told me he
had. and if* I am at liberty T can submit a letter from the people
who sold it to him telling about that.
Mr. Clepiiane : I am afraid that would hardly he testimony.
And you told Mr. Karrick to get the larger mixer that was down
there on the white lot? A. T told him that was too small. That if
he was going to buy one of these Chicago improved mixers to get a
larger size; one of those larger ones.
TRUSSED CONCRETE STEEL COMPANY.
215
Q. What is the actual capacity of the mixer which Mr. Karrick
had on his place? A. Six cubic feet at a batch is the regular capac¬
ity.
%j
Q. Iiow do you know that? A. I have a catalogue from the
manufacturer.
Q. That is the only way you know that? A. Yes sir.
Q. You never visited Mr. Karrick’s mixer to see what size it was?
A. I have seen it dozens of times.
Q. What is the capacity of the size next larger to that you saw
on the White lot? A. I cannot say what they had there on exhibi¬
tion.
Q. Do you know how much concrete was actually mixed per day
on Mr. Karrick’s mixer? A. No; hut 1 can state that the capacity
of the mixer was not worked to its fullest extent.
474 Q. It was not worked to its fullest extent? A. It was not
worked to its fullest extent, because I stood there and watched
the way the thing was done.
Q. I low often did vou stand and watch that? A. 1 should sav
half a. dozen times.
Q. And how long at a time? A. Anywhere from 10 to 15 min¬
utes.
Q. You were sufficiently able then, I suppose, to tell us the capac¬
ity of that mixer per hour. Can you tell us what the capacity per
hour was? A. As turned out by him?
Q. Yes; as you observed it being at work. A. Not from recol¬
lection.
Q. Did you ever notice what its capacity per hour was? A. No,
hut it was not up to the rated capacity here.
Q. flow do you know that? A. The way the concrete was turned
out on that mixer is not in accordance with the best practice for
getting the maximum efficiency. At no time did T ever see that
mixer dumped completely empty at one dumping operation. The
mixer continued to revolve until a wheelbarrow was brought and the
concrete was dumped into the wheelbarrow, then turned back and
waited for another wheelbarrow to come. These wheelbarrows were
dependent- absolutely upon the hoist and there was sometimes a
minute or more between the wheelbarrows getting to that machine.
Ordinarily a concrete mixer is filled with material, is dumped com¬
pletely out and a new charge is put in.
475 Q. According to the way the concrete mixer was mixed
that Mr. Karrick had, how much concrete would it take for
each floor of that building? A. It will take me some time to calcu¬
late it.
Q. You have never calculated it up to this time? A. No sir.
Q. When you were talking with Mr. Karrick about the capacity
of that mixer, was not the question under discussion rather the
economy of having a larger mixer than the necessity of having a
larger mixer for that particular building? A. Mv contention always
was that Mr. Karrick needed a larger mixer, and his contention was
that that was cheaper.
Q. Now you refreshed your recollection regarding vour conversa-
210
FIDELITY STORAGE CORPORATION ET AL. VS.
tion as to the desirability of having this particular mixer, from a let¬
ter which you wrote to the company under date of July 29, did you
not? A. Yes sir.
Q. Have you not an independent recollection of your conversa¬
tion with Mr. Karriek other than what is contained in that letter?
A. Yes. We had been watching the mixer when the conversation
took place, and as we walked away from the mixer toward the hole
in the wall Mr. Karriek said be was sorry be had not gotten a larger
mixer.
Q. Do you know, as a matter of fact, that any time was actually
lost on that building because of the small size of that mixer? A.
I was not on the building all the time.
476 Q. It was impossible for you to see that? A. Yes sir.
Q. It was quite possible for Mr. Karriek to have the con¬
crete mixed bv hand, was it not? A. Yes sir.
Q. And if the mixer was not large enough, if he had men there
to mix by hand lie could have supplemented the mixing that way,
could he not? A. I suppose so.
Q. And you do not know, as a matter of fact, whether he had
anv mixed bv hand or not? A. Onlv from his testimonv that he
« # • %j
had his topping mixed by hand, because his mixer did not mix
fast enough.
O. That is the onlv wav vou know. Do you know what the
» < • i •
size of his hoisting engine is? A. The regular hoisting engine,
eight to twelve horse power.
Q. Have you examined the hoisting engine to ascertain that?
A. T saw it several times.
0. Can you tell the horse power of the engine by looking at the
engine without making any particular examination of it? A. You
can by the size, they all being about the same rated hose power for
the same size.
Q. What was the speed of the cages? A. I cannot answer that.
They all have about the same speed. I could not answer off-hand
without referring to a book.
477 Q. How could you tell whether this plant was of sufficient
capacity and size to do this work within the time specified,
if you bad never made a calculation to ascertain the speed with
which the plant could be operated? A. There is a whole lot a
person knows from experience in handling work, and I had quite
a little bit at that time, and I would never have equipped myself
as Mr. Karriek did to carry out that work if I knew T had to turn
that building over complete by November 15.
Q. That is the best answer you can make to mv question?
(Question repeated).
A. Further answering that. I would state that just about that
time, or just previous to that. T was handling a job in Baltimore,
not so large as this. Tt was thirty-eight feet wide by two hundred
long. T had a much larger mixer than Mr. Karriek had. what was
known as a n yard mixer, and I had a double hoisting cage, and I
had nothing to hoist but concrete on that: did not have to divide it
up with brick, but I did not work as satisfactorily with it as I
TRUSSED CONCRETE STEEL COMPANY.
217
wanted to. and it was for that reason that I made some suggestions to
Mr. Karrick which is in my testimony to equip himself otherwise.
(}. What was the make of Mr. Karrick s hoisting plant? A. I
cannot answer that from recollection.
Q. You never examined it sutliciently to ascertain about that?
I may have examined it by standing off and look-
17-S ing at it. It was not difficult to examine it. There is a
plate on it to show what it is.
(J. You say in your testimony, if you mistake not you suggested
to Mr. Karrick to arrange for two bucket hoists at the quarter points.
You did not seem verv certain about that at that time. Are vou sure
• i/
that you did make that suggestion to him? A. I think there is
something further there in mv testimony, bucket hoist or double
hoist or something.
Q. Assuming that it was buckets; could you haul up the false
work on bucket hoists? A. A bucket hoist as a rule will have a
swinging boom on it. That boom is carried lip with the floors so
that you can hoist very often: they will carry that hoist up several
stories above where they arc working, and carry that boom up so
as not to move it probably more than once or twice during the
progress of the work.
Q. So with the bucket hoist you think you could satisfactorily haul
forms? A. With the boom equipment on it.
(). And bricks? A. Verv often it is done that wav too.
* » •
Q. ITow many buildings have you ever built that way in which
you hauled forms and bricks with bucket hoists? A. T think the
Maryland Casualty Building has adopted it part of the time, rigged
up little derricks as occasion required.
(). Did vou find that verv satisfactory? A. Yen’ satis-
^ « « «.' t/
factory.
«/
470 Q. Did you continue to use it all the time? A. Shortly
after that we stopped doing contract work in Baltimore. T
have not had occasion personally to use it since. I have recom¬
mended it at times and have seen it used often.
Q. When vour company takes occasion to build buildings, it
generally does not take occasion to haul bricks, does it? A. There
was no brickwork we had to do.
Q. But when there is brick work to do, that is a little outside
of your ordinary experience in connection with your work, is it
not? A. T have seen quite a number of millions of bricks hoisted.
Q. On bucket hoists? A. Yes, some of them.
Q. How many on bucket hoists? A. With an experience ex¬
tending over 17 or IS years it is right hard to go back and state
how many times.
Q. Have you ever built a warehouse similar to the one Mr.
Karrick had constructed here? A. Not one like that.
Q. Have you ever built a warehouse at all? A. My position is
not the actual building of the work.
Q. What 's your position? A. When we carried on work 1
had mv superintendents under me who of course did what T told
them.
218
FIDELITY STORAGE CORPORATION ET AL. VS.
480 Q. You loft tho details of those matters to them? A. Yes
sir; to them.
Q. Now do you not remember at one time of a conversation with
Mr. Karriek in which you suggested that he and you form a eo-
partnership for the purpose of construction work? A. I may have
done so.
Q. Do you rememher saying to him on one of those occasions
that you thought he had a plant of such capacity that you thought
you could work it to great advantage in the construction work to¬
gether? A. I have no such recollection.
Q. Do you not rememher a conversation with Mr. Karriek in his
office* at 1333 G street northwest.
after one or two floors of this
building had been erected and before the 4th and nth floors were
finished, when you suggested to him that you would like to go into
co-partnership with him and take* contracts for concrete work, and
that if Mr. Karriek would accede to this you would resign from the
Trussed Concrete Steel Company and become his partner? A. I
have no recollection of that.
Q. Do you not remember such a conversation as that in the
Pennsylvania Railroad station in Washington? A. I do not remem¬
ber that.
Q. Do you not rememher such a conversation in going over on
the cars to Baltimore with Mr. Karriek? A. 1 do not remember
even going to Baltimore with Mr. Karriek.
Q. And you do not rememher wanting him to help furnish
481 the capital and his hoisting plant and going into partnership
with von in construction work? A. 1 do not rememher that.
Q. What was the conversation that you said you did recollect
when 1 first questioned you on this point just now? A. 1 have no
distinct recollection of any such conversation.
(}. Do you not remember suggesting to him that with a capital
of ten thousand dollars in such a co-partnership you could get
one hundred thousand dollars’ worth of contract work per year,
which would net you from fifteen to twenty per cent? A. T do
not recollect any such conversation as that with Mr. Karriek.
Q. With whom did you have such a conversation?
Mr. SinnoNs: 1 object to the last question as not proper cross-
examination. not responsive to the direct examination, and not
relevant or material in anv wav.
Mr. Clepiiane: It is entirely relevant and material because the
witness did say when T first began to question him along this line
that he did rememher a conversation with Mr. Karriek along these
general lines, and it is that conversation that I am anxious to find
out about.
Mr. SinnoNs: My recollection of his testimony is not in accord
with counsel’s.
Q. Do you recollect any conversation with Mr. Karriek about
any of these matters relating to a proposed partnership or joint
business to be conducted between you? A. I have no dis-
482 tinet recollection whatever of any such conversation.
Q. Will you say that no such conversation occurred? A.
No; I will not say that.
TRUSSED CONCRETE STEEL COMPANY.
21S
Q. You are pretty familiar with the method of construction and
with the plans for this Fidelity Storage Warehouse building, are
you not? A. I believe so.
Q. Did any of the steel beams supporting the first or second or
third suspended floors overlap and have to be tied together inside
the concrete? A. I do not understand what you mean by that
question.
Q. One of the witnesses who was introduced here by Mr. Siddons
testified in response to certain questions of mine that the sum
total of the length of these steel beams from side to side of the build¬
ing wa> about sixty-six feet instead of sixtv feet, and be accounts
for that by stating that these beams overlap in the first, second
and third floors, suspended floors, and had to be tied together in the
concrete. Do you recollect any such construction as that? A. No.
Q. It would be a rather unusual construction for the Kahn people
to pursue, would it not? A. It would be rather peculiar.
Q. Could you state. Mr. Smith, whether or not such method of
construction was adopted in this building? A. It was not adopted.
Tt. i> barely possible that <ome bars may have l>een a little
483 long and lapped past each other a few inches.
Q. lie stated that there was a change in the method of
construction in this record at page 23. On page 23 he states this,
that the iron overlaps inside the concrete; they overlap the ends
about a foot in each case: that is so with each beam in the building
on the 1st. 2nd and 3rd floors; when it goes up the walls get nar¬
row. and after that the ends do not overlap and are about even. Is
that testimony correct? A. No. There may have been some over¬
lapping of a few inches.
Q. "Would it be possible to get that quantity of steel to overlap
at the ends in 12 inch beams such as were used in the Fidelity Stor¬
age Warehouse? A. Yes sir.
Q. Was it done in this case? A. There may have been some cases
where Mr. Karrick did not make his holes in the wall as deep as we
figured. They may have overlapped a few inches, or six inches or
a foot.
Q. That would require a larger beam would it not? A. No sir.
One went on top of tlie other like that (illustrating). One bar goes
here (illustrating) and rests on top of the other just like that; that
is at the ends.
Q. You do not know of vour own personal knowledge whether
the fourth and fifth floors were shipped together or not, do you?
A. No sir.
4<S4 Q. Tf they were shipped together it would take some time
to separate and assort the steel for each floor, would it not?
A. I should say no, for this reason, that if you mean the actual 4th
and fith floors steel for one floor would have answered for the other,
and whatever steel was gotten out could have been used.
Q. Yes: but there would be duplicates, would there not. of the
steel for each floor under those 3? A. Certainly.
Q. And consequently those duplicate parts would have to be sepa¬
rated one from the other before either part could be used? A. When
we consider that, we will say off-hand a hundred bars of the same
220
FIDELITY STORAGE CORPORATION ET AL. VS.
size for one floor and a hundred bars for the floor above you can use
any one of those bars and it would make no difference either with
a few of such bars or many of such size, so that there would be no
difficulty about that at all.
Q. Hut bars of the same size would have to be separated, would
they not? A. No. You can put the bars of one size in one pile and
use that for either floor.
(>. Kefcrring to the pier which Mr. Karrick said had to he taken
down and rebuilt, are you sure he said it would have to be taken
down? A. 1 did not know anything about it until it had been taken
down and was being rebuilt.
Q. Did you see it taken down? A. Xo sir.
485 Q. Did you see it being rebuilt? A. T saw Mr. Karrick
standing at the pier when I arrived at the building one day,
and he told me he had to rebuild that pier, how much 1 did not in¬
quire.
Q. He did not tell you he had to take it down? A. Yes sir, but
he did not say whether two or three feet.
Q. He said he would have to rebuild it. but he did not say he had
to take any part of it down? A. If a man had to rebuild a house he
would have to take the house down or part of it.
Q. So that you infer from what lie did tell you that it had to be
taken down? A. My recollection is that he told me that he had
to take it down.
(J. You do not recollect that he did say that? A. No sir; it was
none of ?ny business.
Q. You do not know how long it took to rebuild that pier, do you?
A. Xo sir; it was gratuitous information on the part of Mr. Kar¬
ri ek.
Q. Do you know how much lumber had to be used in that extra
half set of forms that Mr. Karrick had to use toward the end of the
work? A. Xo sir.
(>, Your recollection as to the amount of lumber is simply based
upon Hearing his testimony? A. 11 is testimony and the sketch he
made.
486 Q. And you do not know whether that rough pencil sketch
which he made while he was being examined as a witness is
exactly correct? A. Xo sir.
Q. In making your calculations how much allowance did you
make for waste? A. Tn considering the length of cross joist T gave
the full 20 feet, while in no case are they over 10 feet 0. The string¬
ers above and below which in no case should be more than 7 feet.
1 have allowed 8 feet. The studs which in no case should have been
more than 8 feet T have allowed 10 feet, and the cross bracing being
rather indeterminate depending upon the angle at which it is placed,
the beams being only 7 feet apart. I have allowed in each case 9
feet for that.
Q. Now lumber comes in certain regular lengths, does it not?
A. When bought new.
Q. When you u<e lumber how long does ordinary studding come?
A. In certain stock lengths. You can get them 10, 12. 14, 16, 18—
depending upon what you want.
TRUSSED CONCRETE STEEL COMPANY.
221
Q. ITow long do ordinary Wringers come? A. I have bought
them 10, 12, 14. 10, IS. 20 feet. You can get anything you want.
Q. So that if you allow 9 feet to a stringer when the actual num¬
ber of feet would he only S. in your judgment you simply allow one
foot for waste? A. One foot for waste, yes.
4ST Q. Hut the lumber does not come less than 10 feet, does
it? A. No; but you would use that in two lengths. You
could get it 14 feet and run it over two sides.
Q. You have allowed for 9 feet? A. T was trying to give you the
benefit of the doubt as to certain things that Mr. Karrick might not
have put down, and knowing that he used odd sizes 1 have made as
great an allowance for waste as anybody would want.
Q. I do not understand from what you have told me that you
actually allowed for the waste ends of lumber which could not be
used. If you have, of course I am in error about that. ITow much
did you allow for the cleats which were used under the panels or
doors constituting part of these forms? A. Mr. Karrick testified that
lie used 7 s inch lumber, 1 think. That is, of course, equivalent
to one inch lumber. So I have taken the distance from beam to
beam, which is f> feet, and multiplied by 20 which is one-third,
and assumed that that would take care of the cleats. If it did not,
such extra as I have allowed in here would.
(}. That is all the allowance you made for the cleats generally?
A. Yes. cleats under what he terms doors.
Q. Did you make allowance for any other cleats? A. Yes sir;
in my beam boxes he has testified that he used 7 /h inch stuff in a
great many of these, and two inch in others, and in every case it
was equivalent to 2 inches, meaning cleats and so forth. So
INS I have taken the beam boxes as being two inches thick
throughout and a full 20 feet long.
Q. You say ordinary contractors would not allow more than 12
cents per foot for this kind of work. Is that right? A. I think that
is mv testimony.
• •
Q. Do you know anything about the prices of lumber in this
city? A. Not to-day.
(>. Did you know anything about the prices of lumber at the
time the^e forms were made in this citv? A. Probably the same as
in Baltimore.
Q. Did you know that? A. I do now.
Q. Do you know now? A. That was based on the price it cost me
to do work in Baltimore.
Q. But not here? A. No. But the price of labor and material
was the same. T was using union carpenters and he was using non-
muon carpenters.
Q. Mow much did Mr. Karrick pay his carpenters? A. I could
not tell you that, but less than union wages.
Q. You say Mr. Karrick was paying less than you were paying.
What was he paying? You know what you were paying? A. Tie
did not tell me that. Tie was using non-union men.
ISO Q. You do not know what he was paying? A. From our
general conversation I was led to believe he was not paying
union wages.
I
222 FIDELITY STORAGE CORPORATION ET AL. VS.
Q. Do you know the kind of lumber that was used in that extra
half set of forms? A. 1 do not know anything about the extra
forms at all.
Q. On page 40 of your testimony reference was made to a con¬
versation with Mr. Karrick as to the methods to prevent freezing.
Do you not recall that in one or more of those conversations the
subject of putting salt into the concrete to prevent freezing was dis¬
cussed and you informed Mr. Karrick that you thought it would
not be wise to do so; that it might corrode the steel? A. I have no
recollection of that.
Q. It is quite common in your experience, is it not, for building
contracts to contain a clause providing for payment of a certain
amount for each day > delay in completing a building beyond the
specified time?
Mr. Siddoxs: Objected to as not proper cross-examination and
not responsive to any examination in chief, not material or rele¬
vant.
A. I have seen it frequently in contracts.
(y Mr. Siddons asked you on page 41 a.' to the difficulty of re¬
placing the topping of concrete that had been frozen. You stated
that “there are preparations on the market which will enable you
“ to replace topping, and it will adhere as well as if it had been put
“on originally. ' You mentioned a material known a- Living Stone,
which you stated, 1 believe, was made bv the Living Stone
490 Cement Bond Company. Do vou know of any others besides
that? A. Yes; we are now putting out a material ourselves
which we claim will do that.
Q. When did you first commence to [Hit out this material? A.
Our company itself has just gone into this particular line, you may
say, within the last six months. 1 thought I had a catalogue, but
I have not.
Q. So that this is a new thing with your company since this suit
was started? A. Yes.
Q. How long has this Living Stone been on the market? A.
That living stone bond was on the market just after the fire in Balti¬
more. Mr. Livingstone came in and told me about it. i believe he
had then been trying to do something with it for some time.
Q. Do you know of any places where that living stone has actu¬
ally been used? A. Yes.
Q. W here? A. On the Homeward (band Stand, Baltimore.
Q. The Homeward Grand Stand? A. Yes, for the Johns Hop¬
kins University. You might say the Johns Hopkins University
had Homeward Park, Baltimore.
Q. When was that living stone put on? A. Last summer, in
July and August, along there.
491 Q. When did you examine it? A. 1 have not seen it
within the last two months. I was out there I think the early
part of November.
Q. So that you know it had stayed for 2 or three or four months,
but beyond that you know nothing? A. No, except that if any-
TRUSSED CONCRETE STEEL COMPANY. 2‘23
tiling serious had occurred 1 would have been very apt to have heard
of it.
Q. Have you ever seen any other living stone used yourself? A.
No; that is the only place 1 have seen it used. The only place I
have had occasion to use it, I might add.
Q. Did you put that on yourself? A. No sir; Edward Brady A
8011 did the work.
Q. Have you ever yourself replaced topping successfully? A.
No sir; I have never had occasion to.
Q. Aside from the place which you have mentioned, do you know
where it has ever been done successfully? A. Mr. Livingston has
told me of various places.
Q. Never mind what he has told you. A. He has never told me.
I know personally about that.
Q. That you know personally? A. That is the only place I
have known it used.
Q. Did you see the living stone put on at the .Johns Hopkins
University? A. 1 saw them applying it. 1 did not watch the entire
process, except 1 knew they were using it and saw it there.
492 Q. Do you know whether it was put on to replace topping
which had frozen off? A. No; it was put on at the time the
concrete was put on. They could not put the topping on and they
just put it on this dry set concrete. Some of it had been in there a
month or more.
Q. Do you remember telling Mr. Karrick that you could not make
topping stick after the cement in the foundation had been set? A.
Yes.
Q. That was your opinion at the time? A. That was my opinion
at the time.
Q. But you have changed it since because of this new preparation.
A. Since 1 saw that I have changed my mind.
Q. Have you ever seen the sidewalk opposite the new custom
house in Baltimore? A. I have walked on it but never noticed it.
Q. You never noticed the effect of the topping freezing there and
the attempt to replace it? A. No.
(J. Mr. Hugo Magi ini was a witness on the stand here. Did you
ever recommend him for a position anywhere? A. Yes sir.
Q. Before or after he left Mr. Karrick? A. After he left Mr.
Karrick.
Q. And how recently; can you recall? A. I recommended him
to the Wickersham Company.
Q. Do you recall when that was? A. No sir. It was shortly after
he left Mr. Karrick.
(Here follows Diagram marked page 493.)
224
FIDELITY STORAGE CORPORATION ET AL. VS.
Mr. Siddoxs: (Exhibiting a
this little sketch that the witness
paper.) T offer in evidence
has just made in connection
with and to he considered with his testimony on page 34 in Rebuttal.
(The same is hereto attached and marked “Complainant’s Re¬
buttal Exhibit C. F. S. No. 4.)
Redirect examination.
Bv Mr. Siddoxs:
Q. With the plant and equipment that Mr. Karrick had on the
building for the installation of this reinforced concrete, and know¬
ing and understanding that he was not ready to put in the steel
in his first suspended floor until some time in the early part of
July, could he have completed that warehouse by November 15?
A \<*t the way that lie carried on his work.
Q. You say not the way he carried on his work? A. That must
also be taken into consideration with the plant and equipment.
Mr. Siddoxs: That is all.
It wa- mutually stipulated and agreed by and between counsel,
that the signature of the witness to the foregoing deposition be
waived.
ALEXANDER II. GALT,
Examiner.
495 Eldridge R. Boyle, a witness produced in Rebuttal by
and on behalf of the Complainant, being first sworn, was
examined and testified as follows:
By Mr. Siddoxs:
(). Give the examiner your full name. A. Eldridge R. Boyle.
Q. Mr. Boyle, will you state what your profession or occupation
is? A. Civil Engineer.
Q. By whom are you employed? A. The Brennan Construction
Company, as their chief engineer.
Q. ITow long have you been with them? A. Four years at this
time, and one year previously.
Q. Have you. in your character of chief engineer of this company
or as a civil engineer, had any experience with the construction of
buildings, and with special reference to the use in that construction
of the various systems of reinforced concrete work? A. Yes sir;
I have been engaged along that line for ten years.
Q. Have vou been so engaged in this citv? A. In this city?
Yes.
Q. Have you had anything to do with supervising or superintend¬
ing the construction of buildings in this city in which one or
490 the other of these systems of reinforced concrete has been in¬
stalled? A. Yes sir : 1 carried on that part of the work for
the Brennan Construction Company. I am in charge of that class
of their work.
Q. Have you had any experience or have you any knowledge of
BIBIT C. 7. S. HO. 4,
' 0
49 .‘$
TRUSSED CONCRETE STEEL COMPANY. 225
what is known as the Kahn system of reinforced concrete? A. I
have used it in five buildings in Washington; yes sir.
Q, This litigation involves the construction of a warehouse or
storage warehouse on the south side of U street Northwest between
14th and loth. A. I have >een the building and know it.
Q. That building as appears in the testimony in this cause con¬
tains eight suspended floors and roof. A. Yes sir.
Q. It is in the testimony of the defendant that he was not ready
to use and did not use the steel for the first suspended floor until
some time the very last of June or the early part of July, 1905.
It is also in the testimony of the defendant Karrick that the mixing
machine that he had was of a size that produced, I believe, six cubic
feet at a batch. lie had one hoisting machine according to his tes f i-
mony. What have you to say from your knowledge of the construc¬
tion of this system as to the time when Mr. Karrick should have
completed that building?
Mr. (Yki’HANK: Objected to as not containing an accurate por¬
trayal of the conditions at this storage warehouse building, as
497 taken from the testimony. The testimony shows that the
plant which Mr. Karrick has had on the ground and was
operating on that building was considerably more extensive than is
indicated in the question.
A. I think that for a building of that size, in answer to your first
question, a mixer that would only mix six cubic feet is very small.
It would take a great deal longer to complete the building than if he
had the size of plant that would ordinarily be used. In regard to
the time on that building that it would take to put in eight floors
and a roof l think that an allowance of twenty-one days to the floor
with such plant would be as small as it could possibly be done in,
and as few a number of days as it could be completed in.
(J. Do you mean to say then that to construct the eight suspended
floors it would take eight times 21 days or longer? A.* It would
take at least eight times 21 days.
Q. Eight times 21 for eight suspended floors? A. Yes sir.
(}. And how about the roof? A. About the same length of time.
Q. Is your answer to he understood as applying to setting this
concrete in cold or freezing weather? A. No sir; that is dining good
conditions—no danger of freezing.
Q. Supposing that the weather for a part of the time is cold, not
necessarily freezing but cold with reason possibly to apprehend freez¬
ing; would the time for putting in one of those floors be
498 longer than 21 days? A. Yes, for this reason, that in cold
weather the concrete sets verv much slower and vou would
not be able to pull your forms.
(j. I ought to have stated to you that the size of this building,
the size of each floor from exterior side wall to exterior side wall is
sixty feet, and the length of the floor, the length of the front and
back walls is two hundred feet. In the light of those dimensions,
which will also of course give you the dimensions of the floor space
approximately, at any rate, does your testimony remain the same?
A. Twelve thousand feet on the floor? Yes.
15—2057a
226
FIDELITY STORAGE CORPORATION ET AL. VS.
Q. I exhibit to you the plans of tins building, and ask you to ex¬
amine them. (Witness examined the plans handed to him by coun¬
sel for complainant.) Now having examined those plans, bearing
in mind also the size of the building as I have given it to you, 60
by 200 feet, and the character of the hoisting machine, which I
think you call a double hoister, and the size of the concrete mixer,
1 wish you would state whether in your opinion the plant and equip¬
ment that Mr. Karrick had for installing this reinforced concrete
were sufficient for the purpose or not.
Mr. Clephane: Objected to on the ground that the plant and
equipment which Mr. Karrick had on that building is not yet prop-
erlv described in accordance with the testimony.
Mr. Smnoxs: Will you kindly indicate in what respect it is want¬
ing
Mr. Clephane: The testimony is there for vour inspection
409 A. I do not think the plant as described to me is sufficient
to do it within anv such time, because after the reinforced
concrete part of the building was completed there still remains a
great deal of work to do, or quite a little work to do.
Q. Now for constructing a building of the size of this warehouse
in accordance with the plans which you have examined, installing
the Kahn svstem of reinforced concrete in it. what should have been
the equipment for doing that work with respect to such matters as
the forms, the mixing machine, and the hoisting machine, if you
please? A. If I were attempting to complete that building in that
time, the reinforced concrete work would have to be pushed so
rapidly that I would figure on having at least four sets of forms, two
mixers and two hoisters. the mixers not being less than $ yard
mixer; working from the two ends of the floors, it seems impossible.
Q. When you sav four sets of forms, what do you mean? A. I
mean four sets of wooden forms, a set sufficient for a floor.
Q. In other words, the forms set for four floors? A. Yes sir;
the forms set for four floors.
Q. With that equipment and a sufficient force of men do you be¬
lieve that the work could then have been done in time? A. I think
it possible.
Q. With only half the number of forms that you have just sug¬
gested, with the mixer that was actually used as you have
.">00 been told, and with the double cage hoist that was used, is it
possible to have completed the work by November loth? A.
I do not think so.
Mr. Clephane: Question objected to upon the ground that the
testimony is not accurately stated as to the number of forms which
Mr. ivarrick had.
Q. Could the work have been completed by November 15 with
an equipment of two sets of forms up into, say, November, 1905,
when there is added one-half of a form or one form centering for
half of a Hoor, could it have been completed by November 15? A.
I do not think so.
Q. Can you tell us, Mr. Boyle, from your examination of the
TRUSSED CONCRETE STEEL COMPANY.
227
plans and from the equipment or plant that was used by Mr. Kar-
rick in installing this system of reinforced concrete, how long it
would have taken him, assuming that he had a sufficient number
of men, but with no greater equipment than that? A. May I ask
a question?
Q. Certainly. A. Assuming that he did not get into freezing
weather?
Q. Either way, bearing in mind always that he was not ready
to put in the concrete for the first suspended floor until the early
days of July, 1905, how long do you think it would have taken to
put the system in with that equipment he had? A. I should
say at least six months, and if the weather conditions were bad,
longer.
501 Cross-examination.
Bv Mr. Clephane:
%/
Q, Mr. Boyle, when you stated that it would take four sets of
forms to do this work, that estimate was based I suppose upon your
previous testimony that *21 days should be consumed in permitting
each floor to set before the forms were removed, was it not? A.
Personally, I have never pulled forms in less than 21 days. I do
not consider it safe.
Q. So that your testimony that it would require four sets of forms
was based upon the idea that it would not be proper to pull those
forms short of 21 davs? A. My testimonv was on that basis of 21
davs.
%>
0. If it should happen that the forms could be pulled short of 21
days then it would not require as many sets of forms I suppose to
complete the building in the time you indicated, would it? A. No,
I do not suppose so.
Q. Will you please tell us the five buildings which you say you
erected for the Brennan Construction Company, what the character
of those buildings was, and where they are located? A. You mean
the five buildings in which I have used the five systems in?
Q. 1 mean the ones in which you used the Kahn system. A.
'Pile first in which 1 used the Kahn system was the Brooks stable,
Seventeenth near L street.
502 Q. Mow large a building is that? A. One floor.
Q. And what dimensions? A. I do not remember, prob¬
ably about 100 feet long and about I suppose it would average 60 or
70 feet in width.
Q. And the next building? A. Was the Terminal Storage Ware¬
house.
Q. And that is located where? A. On L street near the railroad.
It is L street about first street northeast.
Q. And the size of that is what? A. That is three stories and •
roof.
Q. What are the dimensions? A. About fifty by one hundred.
Q. The next building was what? A. The Naval Medical School
Hospital.
228
FIDELITY STORAGE CORPORATION ET AL. VS.
Where is that? A. That is Twenty-third and E streets north¬
west.
Q. And the dimensions of that building is what? A. There are
two buildings in that. The two buildings were about 50 by 50, 2
stories and roof, and there was a connecting corridor connecting the
two, a sort of an arcade arrangement which was also reinforced.
Q. And the next one? A. The next was the Garfield Memorial
Hospital, the Johnson Memorial Ward at Garfield.
Q. The size of that is what? A. That is about 90 by 35 I should
say. It is three stories and ceiling reinforced.
Q. The fifth is what? A. The new library building for
503 the Bureau of Chemistry, Agricultural Department, six floors
and roof. That is not quite completed. The six floors are in,
but the roof is yet to be completed.
Q. You superintended the construction of all of those? A. Yes
sir.
Q. Was any of those buildings put up in the winter? A. The
Bureau of Chemistry building was put up a part. That began about
the first of October, so we ran into the winter on that. That was this
last winter.
Q. And it required longer, I suppose- A. (Interposing.) On
that building, yes.
0. And consequently each set of forms had to remain in the
building longer in freezing weather? A. In this building we used
temporary heat in order to dry it out. The weather was very bad.
Q. That is the proper thing to do when the weather is very bad,
is it not? A. It is the proper thing to do when the weather is very
bad.
Q. Now vou sav that this mixer that Mr. Karrick had was not of
sufficient size and capacity to complete the building in the time
indicated by Mr. Siddons. What was the capacity of the mixer
which Mr. Karrick had? A. From Mr. Siddons’ question the de¬
scription of it was six cubic feet, the capacity was six cubic feet.
(*. In what length of time? A. A batch. It deposited that much
concrete in a batch.
504 (j. How long would it take to make a batch of concrete
with that mixer? A. It should take never less than three
minutes.
Q. So that a batch of six cubic feet could be made in three min¬
utes? A. It would depend upon how the material was used in it.
There are a great many conditions that come into that. That is a
pretty good average for it.
Q. IIow many square feet of concrete was there on this floor? A.
From the figures there were evidently about twelve thousand.
Q. IIow many cubic feet were there? A. I should say from the
construction, glancing at the plans—if you will give me a minute
I can answer that question by making a slight calculation.
Q. You have not made the calculation yet? A. No sir, but I
know in my mind aliout how it ran. I know by the square feet
how it ran.
Q. What was in your mind upon which you answered the ques¬
tion a little while ago as to the depth of the concrete in each floor?
TRUSSED CONCRETE STEEL COMPANY.
229
A. I should say each floor would run probably around 175 cubic
yards.
(J. What is the depth of the concrete in each floor upon which
you make that estimate? A. The depth of the concrete, the slab
itself is at>out four inches, and these beams shown here are
505 about eight feet; they appear to be about eight feet on the
side.
You have never examined the Karrick warehouse yourself to
ascertain what the depth of the concrete is, and it would be impos¬
sible to tell what the depth of the concrete is from a casual glance,
would it not? A. Except my knowledge of reinforced concrete. I
would assume that to be about the construction. It is very much
alike, 1 mean the construction Ts, a good deal.
Q. So that your testimony as given here upon your direct ex¬
amination was based not upon your actual knowledge of the condi¬
tions at this particular building, but upon your general knowledge
of reinforced concrete work? A. I answered the question after look¬
ing at the plans.
Q. No, you are mistaken about the first question that was put to
you. The first question put to you was if Mr. Karrick with the plant
that was described by Mr. Siddons could complete the work in the
time indicated by him. You said he could. Up to that time you
had not seen the plans. A. According to mv opinoin, Mr. Karrick
could not have completed any concrete building of eight suspended
floors 12.000 square feet each and roof in that time with such a
plant.
( l . Up to that time you had not been told there were 12,000
square feet of surface, had you? A. sir; that was in Mr. Sid-
don.V first question.
Q. You are mistaken. Would it have been possible for you to
have made such an estimate and give your answer, without
50f> a knowledge of the number of square feet of surface on each
floor? A. In this particular case, I do not. know. My im¬
pression is still that Mr. Stddons spoke of the number of floors, if
he did not say the exact size, and I am familiar with the building*
I have passed along and noticed it a great many times. I used to
live in the neighborhood. In fact, I was living there when it was
put up.
Q. Did you ever measure the dimensions of the building? A. No,
not with a tape.
Q. So that before Mr. Siddons told you you did not know what
the dimensions were? A. No sir. If you had asked me what they
were T could not have told you at first.
Q. What was the capacity of the hoisting plant that Mr. Karrick
had on that building? A. The capacity of the hoisting plant?
Q. A T es. A. You mean in nine hours, a working day?
Q. Yes. A. T should say he could hoist in nine hours with that
plant, or with that hoist, probably between 60 and 70 yards.
Q. On what do you base that estimate? A. Upon experience.
Q. Have you ever measured his hoisting plant? A. No sir. T
know it was a hoist that would hold a wheelbarrow, twice the ordi-
narv double hoist.
%
230
FIDELITY STORAGE CORPORATION ET AL. VS.
507 Q. IIow many times have you inspected that hoist plant
of Mr. Karrick? A. I never saw it.
Q. Then how do you know it is the character of plant that you
described? A. It is on a double hoist.
Q. Mr. Siddons did not toll you that, did he, today?
Mr. Siddons: Yes, I did.
A. lie said it was a double hoist, a double hoist and a brick ma¬
chine, which means it carries up a double wheelbarrow and brings
a double wheelbarrow down.
Q. Did Mr. Siddons tell you that before he asked the question
whether Mr. Karrick with the plant he had could construct the
building in that time? A. In describing the plant he said it was
a double hoist or a double hoist.
Q. Could you have answered his question without a knowledge
of that hoisting plant? A. I could have answered it. He said it
was a doublo hoist. \
Q. If he had not told you the size of the hoisting plant could you
have answered the question? A. I could not. If he had said there
was one hoist, yes.
Q. So that it did not make any difference about the size of the
hoist; one hoist is one hoist, and there is no difference in the
508 size of the hoist in vour mind? A. I answered the question
as Mr. Siddons stated it, if it was a double hoist it was a double
hoist.
Q. Now I do not think you gave your age. A. It is thirty-three.
Q. And you have been in the concrete business how T long? A.
Ten years.
Q. You are now employed by the Brennan Construction Com¬
pany? A. Yes sir.
Q. And you have been with them how’ long? A. Five years of
tho ten.
Q. Simply working for them and no one else? A. Five years
with them. In the ten years I have been in their employ absolutely.
Q. And now you are in their employ? A. Yes sir; and have been
for five vears.
Q. And not doing any work outside of them? A. No sir; in the
five years no other work.
Redirect examination.
Bv Mr. Siddons:
«
Q. Referring to that building that Mr. Clephane asked you about.
that you have said 1 think was not quite finished- A. Yes sir.
Q. What is the height of that, how’ many floors? A. Six floors
and roof.
509 Q. When did you begin the construction of that? A.
About the first of October.
Q. And how many set- of forms did you have for that? A.
Three?
Q. And the mixer that you used? A. Eighteen cubic feet.
Mr. Clephane: These questions are objected to as being abso¬
lutely immaterial to the issues involved in this case. We know'
TRUSSED CONCRETE STEEL COMPANY.
231
nothing about the size and manner of construction of the building
that is now under discussion.
Q. Now what is the size of the floors, what is the floor space? A.
About eighty-five hundred feet on a floor.
Mr. Clephane: Nor do we know anything about the size of the
plant used, the number of men employed, or anything else used in
regard to the details of it.
Q. Besides the five buildings in which you have installed this
Kahn system of reinforced concrete, have you had any experience
in the installation of other systems of reinforced concrete in other
buildings? A. Yes sir; the National Museum library I put that
on. It is just completed. 1 have done a great many jobs that I
could not mention.
Q. Have you in the course of your professional employment had
occasions to make any comparisons of the different systems of re¬
inforced concrete, observing them with reference to what is required
for their installation and so on?
510 Mr. Clephane: Question objeeted to as being not re¬
direct examination in anv sense.
Mr. Siddons: I think that is all.
Signature of witness waived by consent of counsel.
ALEXANDER II. GALT,
Examin er.
Adjourned subject to notice.
Counsel for the complainant subsequently announced the close of
his testimony in Rebuttal.
ALEXANDER II. GALT,
Examiner.
511 Testimony in Sur-retmttal.
Filed April 22, 1909.
In the Supreme Court of the District of Columbia.
Equity. No. 26091.
Trussed Concrete Steel Co., Complainant,
vs.
Fidelity Storage Corporation, Defendant.
District of Columbia,
County of Washington, ss:
Be it remembered that at an examination of witnesses begun and
held on the 9th day of April, A. D., 1909, when the within deposi¬
tion was taken; I, Alexander H. Galt, an Examiner in Chancery,
did cause to l>e personally present at the office of Walter C. Clephane.
Esquire. Fendall Bldg, in the city of Washington, in said District,
232
FIDELITY STORAGE CORPORATION ET AL. VS.
James L. Karrick, one of the defendants to testify on the part and
hehalf of the defendants in sur-rebuttal, in a certain cause now
pending in the Supreme Court of the District of Columbia, wherein
the Trussed Concrete Steel Co. is complainant and The Fidelity
Storage Corporation is defendant.
Which said examination was had after due notice and at which
on the day aforesaid, there were present F. L. Siddons, Esquire, for
the complainant, and Messrs. Clephane & Clephane, for the de¬
fendants.
ALEXANDER H. GALT,
Examiner.
512 Washington, D. C., April 9, 1909.
Mot pursuant to notice at the office of Walter C. Clephane Esquire,
Fendall Building, Washington D. C. on the above date for the pur¬
pose of taking testimony in sur-rebuttal.
Appearances: Frederick L. Siddons Esquire, Solicitor for the com¬
plainant: Walter C. Clephane Esquire, Solicitor for the defendant
Karrick. and Alan O. Clephane Esquire, Solicitor for the defendant.
The Fidelity Storage Corporation.
James L. Karkk'K. one of the defendants, having been recalled
as a witness on behalf of the defendant* in sur-rebuttal. testified a.>
follows:
By Mr. Clephane:
Q. Mr. Karrick. I notice that Mr. Smith has made certain com¬
ments upon the amount of lumber used in your extra half set of
forms, which you found it necessary to make in the autumn, stating
that estimating from the sketch which you have prepared roughly
during the taking of your testimony, it was impossible for him to
figure out where you had actually used the amount of lumber you
claim to have used. Will you state whether it would be possible for
you from that sketch, which was offered in evidence, to estimate
the quantity of lumber which was actually used in that extra
513 half set of forms?
Mr. Siddons: The question is objected to as immaterial and irrele¬
vant, whether Mr. Karrick could or not.
A. It would be impossible for me to estimate the quantity of lum¬
ber from that sketch, that was so hastily drawn.
Q. Was it intended to be an accurate sketch?
Mr. Siddons: The question is objected to. It was offered as a
part of the witness’ testimony and he cannot now assail its integrity.
A. No sir.
Q. In what respects, if any. do you think it is inaccurate?
Mr. Siddons: Let it l>e understood that my objection goes to all
testimony intended to question the accuracy of the plat prepared by
the witness and put in evidence.
A. It was not so inaccurate as it was incomplete, I would call it.
TRUSSED CONCRETE STEEL COMPANY.
233
Q. Was it made with any care or particular forethought? A*
No sir.
Q. It was made right at the time you were on the witness stand,
I believe, was it not? A. Yes sir.
Q. And made at the request of counsel for the Trussed Concrete
Steel Co., was it not? A. It was.
Q. Would it he possible for any one else, exj>ert or inexpert,
51 1 to figure up the amount of lumber used for that extra half set
of forms from that sketch? A. Not from that sketch, no sir.
(). I understand that vou have stated to the Examiner that you
desired to make a correction on page 26 of your testimony, in that
portion of the page where you say that the struts or studding, that
is the posts, that rest on the finished floor and carried the forms over¬
head, were three bv four. Have vou anv correction to make in that
t • •
regard? A. That should he four by four.
(}. (Am you recollect now whether it was your mistake or an error
of the Examiner that made it 3 by 4? A. I think it was the stenog¬
rapher's mistake, but I meant to say 4 by 4, and I think 1 did say
4 by 4.
Q. Referring now to the concrete mixer, which it has been con¬
tended by the Trussed Concrete Steel Company’s witnesses was of
insufficient capacity to carry on the work at this building, can you
slate what the capacity of that concrete mixer was per hour?
Mr. Sinnoxs: \ object to the question as not proper sur-rebuttal,
the witness having undertaken to give the size and capacity of the
mixer in his previous testimony in chief.
A. The capacity of the mixer was six cubic feet at a batch, and it
mixed a batch every three minutes. I can give it to you with a little
figuring.
Q. How many cubic feet or yards per hour? A. It would be 120
cubic feet per hour.
Q. How many cubic yards would that make a day of nine
515 hours’ work? A. (After figuring) About 36 cubic yards in
nine hours.
Q. And how long would it take the concrete mixer, running at
that capacity, to put in a single floor? A. About four days.
Q. About how many cubic yards were there to a floor? A. About
160 cubic yards of base concrete, the kind we mixed in the mixer,
to a floor. That does not include the topping.
Q. ITow many yards of topping? A. About 15 yards of topping
to a floor, and that was always mixed by hand, and we frequently
mixed some of the base by hand. If we needed any more concrete
than we were getting from the mixer it was mixed by hand.
Mr. Siddons: I object to so much of the answer of the witness as
undertakes to state what was done by hand, as not proper sur-re-
buttal.
Q. Mr. Smith states that the concrete mixer which you had was
cue which was on exhibition in the White Lot. in this city. What
have you to say with regard to the accuracy of that testimony? A.
That is a mistake. I did not buy the mixer that was on exhibition
234
FIDELITY STORAGE CORPORATION ET AL. VS.
but did buy one of the Chicago Improved Cube Mixers of a later
type, or improved type, which was shipjied to me from Chicago. I
would like further to correct Mr. Smith’s statement there that there
were three sizes of mixers on tlie ground.
Mr. Siddons: lie did not say there wen* three sizes.
">1B He said there were three mixers there.
The Witness: There was only one size mixer, the Chicago
Cube Mixer. There were some other mixer* of different sizes there,
which were of a different make and were not considered by us
seriously.
Q. Was it necessarv to use anv concrete mixer at all? A. It was
not.
Q. Why? A. We could just a* easily have mixed all our concrete
by hand. The object of the mixer is to reduce the labor cost, not to
facilitate the work.
Q. As a matter of fact was that concrete mixer that you had
usually worked to its full capacity? A. No sir. it was not necessary.
We seldom worked it to its full capacity.
Q. Why? A. Recause we allowed usually ten days to put in a
floor, and found it more satisfactory and more economical to work
it at about half its rated capacity, which gave us all the concrete we
wanted, except at certain stages of the work where we wanted to
complete a section bv night, or before Sunday, or for some reason
of that kind, and then we would crowd the mixer and turn out more
work, and also mix by hand. and. in that way. add to the quantity
of concrete put in that day in that way.
Mr. Siddons: I object to this testimony, and let it be under-
f,17 stood that my objection goes to all testimony of this character,
it not being responsive to the rebuttal testimony offered by
the Steel Company but is a part of the witness’ testimony in chief,
on the ground which he has substantially covered.
Q. The Steel Company has also introduced evidence tending to
indicate that your hoist was not of sufficient capacity for this work.
What have you to say in that regard? A. I can say that when we
built a tloor in ten days, as we did—and I mean by that that we
put in the concrete for a floor, and built the brick work for the floor
above, and put in the forms all in ten days—that at no time was the
hoisting engine run to its full capacity, except possibly for an hour
or two at a time on some special occasion. We could, in other words,
have hoisted twice as much as we needed within that ten days.
Q. What was the actual capacity of that hoisting plant? A. It
would hoist a wheelbarrow of concrete, or a wheelbarrow of bricks
in th roe seconds.
Q. IIow long would it have taken, working that hoister to its full
capacity, to haul up all the material on that building? A. Do you
mean for each floor, or for one floor?
Q. Take it, first, for one floor? A. It would hoist all the material
used in three days if it was run at its full capacity.
Q. For one floor? A. For one floor—three days of nine hours
each.
TRUSSED CONCRETE STEEL COMPANY.
235
• >1S Q. Mr. Smith suggested that a bucket-hoist would have
done the work letter. What do you say about that? A.
I hat shows that Mr. Smith is not familiar with building construc¬
tion. outside of concrete construction. No bucket-hoist will hoist
brick economically or fast.
Q Up «ivs, however, that a swinging boom could have been
rigged so as to do the work on a bucket-hoist. What about that? A.
I have been in the building business for 25 years, and I never saw
one that would hoist brick economically in the way he says; and.
further, no boom could be rigged on a bucket hoist that could be
run at the same time that the bucket hoist is run by an ordinary*
hoisting engine. A boom could be rigged on a bucket-hoist that
could be run with a hoisting engine when the bucket-hoist itself
\\a< shut down but they could not both be run at the same time, and
no builder ever built a building that T ever heard of using a combina¬
tion bucket hoist and derrick to hoist any large quantity of brick.
Q I asked Mr. Smith, when he was on the stand, if he did not
recollect a conversation with you in which he had broached to you
the subject of forming a partnership in which your plant should be
put in and used by the partnership. Have you any recollection of
such conversation? A. T have. We had several conversations.
Q. Will you state where this conversation occurred and when?
Mr. Sinnoxs: Of course I object to this testimony as irrelevant
an<l immaterial, and not proper sur-rebuttal.
A. One of those conversations took place on the building;
• >1D that was the first time he pro|M)scd to me to go into partner¬
ship with him. lie suggested that If 1 would raise $10,000
we would form a partnership and he would guarantee that the
firm would get at least $200,000 worth of concrete work to do even*
year. He said he would resign from the Steel Company and put his
whole time into this work. He said we could make about 15%
profit on the work. 1 talked with him about what the $10,000
would be needed for and he suggested that we would need two com¬
plete building plants, and part of the $10,000 would be represented
by my plant, which was doing first class work, and he suggested two
plants because we would probably l>e running two jobs at one time.
Q. Did he have anything to say as to the capacity of your plant—
what he thought it was capable of doing? A. I do not recall that
there was any special talk of that at the time hut he seemed entirely
satisfied with the taking over of the plant into this co-partnership
that was suggested. He urged me repeatedly to go into that part¬
nership. One conversation was held in the Pennsylvania railroad
station in this city where we were having a conversation in part
about remodeling that station building for an amusement hall.
It was a suggestion that he made to me and we talked the matter,
over a good deal.
Q. As a matter of fact was there ever a single day’s delay on this
building because of want of a sufficient number of forms? A. No
236
FIDELITY STORAGE CORPORATION ET AL. V9.
Q. Was there ever a single (lav’s delay on this building
520 because of an insufficient plant? A. Not the slightest delay.
Q. You have said that von could, and did, erect floors in
ten davs. Is there anv reason whv. if steel had arrived at the time
• t •
you ordered it. every floor in the building could not have been
erected within that time?
Mr. Kiddons: The question is objected to as a repetition of testi-
lnotiv given bv the witness in the case in chief, and I shall move
• • * •
to strike it out.
A. There is no reason why every floor could not, have been put in
in ten days. You spoke about any delay on account of plant. 1 want
to modify mv answer a little there. Mv answer is correct—there
• • •
was no delay but at one time, for a few days, the concrete mixer was
out of commis'ion on account of a breakage, and wo did our work
as promptly by mixing entirely by hand at that time.
Q. 1 observe that it has been testified here that the first delay in
the delivery of the material occurred in the fourth floor—which
was ordered to he delivered on Aug. 15. If that floor, and the subse¬
quent shipments had been delivered at the time it has been stipulated
they were ordered to he delivered, can you state whether or not it
would have been possible for you m have completed the work by
Nov. 15th? A. It could easily have been done.
Q. How do you figure that out? A. By allowing ten days to
each floor and the roof, the fourth floor could have been completed
hv August 25: the fifth floor by September 5; the dxtli floor by Sep¬
tember 15; the seventh floor by September 25; the eighth
521 floor by October 5; the ninth floor by October 15 and the roof
by October 25.
Q. The testimony of Mr. Layton F. Smith and Mr. Boyle is to
the effect that it would take three weeks to complete a floor, and that
three entire sets of forms would he required in order to carry on that
building, and that in order to build this building it would have taken
a larger number of forms than you had and a larger concrete mixer.
Would it he possible. Mr. Karriek, to proceed to erect one floor at a
time and complete that before proceeding to tin* erection of the
next one?
Mr. Stddons: Objection is made to that question as not lxdng an
accurate statement of the testimony inasmuch as it was not claimed
by any witness for the complainant Steel Company that it was essen¬
tial to have three sets of forms in order to build the building, the
testimony being that it was necessary in order to build it within the
time claimed by the defendant, Mr. Karriek. It is further objected
to because it is not proper sur-rebuttal. The witness has gono all
over this matter in his testimony in chief.
•
Q. It is possible that Mr. Boyle stated it would require four sets
of forms: the record will show that. I would like to have you answer
mv question. The question is whether it would be possible t<» erect
one floor complete before proceeding to the erection of the next one?
A. It would not he a practicable way of putting up the building.
TRUSSED CONCRETE STEEL COMPANY.
237
Q. Why? A. ttecausc that would require, first, the brick-
layers to lay nj> the walls complete and then the bricklayers
would have to he laid off and it would be very difficult to
get them back again. As soon as the bricklayers had finished it
would then be necessary to have a large force of carpenters on hand
to erect those wood forms, and when the forms were complete the
carpenters would have to he laid off, and then a force of concrete
laborers would come on and put in steel and concrete, which would
require a large force of concrete men and a large mixer, and would
tax the capacity of even the hoisting plant to get that all in quickly.
Now that would not be feasible for more than one reason, the prin¬
cipal reason being that you could not keep your good mechanics on
the building in that way. where they are worked part of the time
and then be laid off part of the time. It would be a very expensive
way to build a building.
Q. Was it the way your building was built? A. No sir.
Q. How did you build your building? A. This building was
treated as if it was three separate buildings; it had three sections
which were known as the east section, middle section and west sec¬
tion. each section being about twenty feet wide and two hundred feet
long.
Mr. Siddons: I renew my objection to this line of testimony.
It is perfectly obvious that it is a repetition of testimony already
given by the witness, and is not proper sur-rebuttal.
The Witness: Our method of building, after we had experi¬
mented some on the first and second floors, was to start the
523 bricklayers at the north end of the east section and they
would lav then the brick walls for a distance of 100 feet, or
half the depth of the building.
Q. I low high? A. Up a story high. Then the bricklayers and
the scaffolds would be removed to the south end of that same section,
and they would go to work erecting the walls a story high for that
section. As soon as they were out of the north end of that section
the carpenters would begin to put up the forms, and to follow the
bricklayers right around. After the carpenters had gotten up 40
or 50 feet of forms the concrete and steel men would begin putting
in the steel and concrete on top of those forms, and, in that way,
with a moderate gang of men, we kept them all busy. There was
hardly a day that the bricklayers lost any time on the building, and
at no time did the carpenters lose any time except when we were
shut down completely waiting for steel.
Q. I hand you a photograph and wish you would state what it
is? A. (After examining photograph.) That is a photograph of
the building taken during the construction. The camera was
mounted on the south wall of the building and pointed toward the
north. Tt shows a photograph of myself and Magrini.
Q. It is a photograph of this particular building under considera¬
tion here, is it? A. Yes sir.
Mr. Clephaxe: I offer that photograph in evidence.
238
FIDELITY STORAGE CORPORATION ET AL. VS.
524 Mr. Siddons: For what purpose?
Mr. Clepiiane: Simply to show the method of construc¬
tion.
Mr. Siddons: 1 object to the offer of the photograph upon the
ground that it is not proper sur-rebuttal, and if competent at all,
would have been competent in the case in chief of the defendant-.
The photograph is marked for identification Defendants’ Exhibit
Sur-rebuttal No. 1.
Q. What is this structure on the right of the picture, consisting
of three uprights, with a colored man standing immediately adjacent
to it. with his hack to the structure? A. That is a hoisting plant.
Q. There has l>een some testimony given alxmt the contemplated
change of plans in the construction of the roof, which resulted, I
believe, in eliminating even* alternate beam,, which was originally
on the plans. Was any working drawing of the roof ever furnished
by the Steel Company? A. Yes sir.
Q. When that working drawing was furnished, can you recall
about what time that was? A. My recollection is about October 15,
but that could be verified by the letters of Mr. Smith.
Q. When it was decided to eliminate every other beam, was there
any change made in that working drawing? A. No sir, never but
one and that was made after the decision was arrived at to eliminate
the beams. That is the only working drawing that they ever
525 furnished of the roof, and the elimination of the beams was
their own suggestion—Mr. Smith’s suggestion, lie suggested
that the Steel Company would save some Steel-
Mr. Siddons: One moment, if you please. 1 object to this line of
inquiry upon the same ground, that the whole subject was covered by
the witness when he gave his testimony in chief, and in no sense sur-
rebuttal. but is seeking to contradict a witness who contradicts him,
and we could go on ad infinitnn at that rate.
Q. Was there any change made in the size of the beam boxes
in consequence of that elimination of every other beam? A. No
sir.
O. Was there anv delav of anv kind caused bv the conversation
v • v • »
on the subject of eliminating every other beam, or the proposed
change in the plans of eliminating every other beam? A. No
delay whatever.
Q. Mr. Smith states that if the steel for two floors had been shipf>ed
together it would have been impossible for any delay to have been
caused because of that fact in unpacking the steel and getting it
ready for use. Will you explain just how such a delay occurred?
A. The particular steel that we needed to start the floor with hap¬
pened to be at the l>ottom of the car, or rather, in the second car.
I think that steel came in two car loads and we could only unload
steel as the railroad company placed the car in a position where teams
could get at it. They placed the first car for us and we
526 unloaded that, but on that car there happened to be no steel
that we required to start the floor; the steel that we required
was in the second car, which we could not unload until the second
TRUSSED CONCRETE STEEL COMPANY.
239
(lav. Further than that the particular steel that we happened to
need on that floor was at the bottom of the ear, and we had to haul
all that was on top first before we eould get at the steel we needed.
That caused us a delay of two days or more at the time of that ship¬
ment, when two floors were shipped together.
Q. Mr. Smith has also stated that you informed him that the pier
in the building had to be taken down and rebuilt. Will you state
what the fact is in that regard? A. There was a pier on the first
floor laid four inches out of line but it did not delay anything. We
added four inches to the thickness of the pier; we did not take down
any pier. It did not delay us any. It was on the first floor where
there was no delay in steel, and we never claimed any delay on the
first floor.
Q. Mr. Smith has also stated that if the topping heaved up after
it was placed on, that that was evidence to his mind that it had been
placed there after the base had become thoroughly set. Will you
state how much time elapsed between the laying of the concrete for
the base and the time of placing the topping upon it? A. The top¬
ping men followed the base immediately; it was always put on, we
call it, at the same time, but they followed afterwards. Sometimes
/ / •
they would be fifteen or twenty minutes after the base was put on; it
might, in some cases be an hour hut in every case it was before
527 the base had time to set.
Q. What was the maximum time that elapsed in any case
between the time of finishing the base and commencing the topping?
A. I do not think there was ever a period of over an hour on any
part of it. It was all put in in the same manner. On most of the
floors the topping is still in very good shape. It was oidy the floors
where the freezing occurred that we had any trouble with the
topping coming off.
Q. One of the witnesses for the Trussed Concrete Steel Company,
a man named Frank II. Sprouse—do you remember having such
a workman in your employ? A. Yes sir.
Q. What became of him? A. I discharged him.
Q. Why? A. For inattention to his business. He persisted in
leaving the job and going away and would be gone for several
hours at a time. lie did that two or three times. Tie was not a
competent man and not satisfactory in other ways in his work.
Q. Do you know when you discharged him? A. I cannot recall
the day. The time books will show that,
Q. Ilave you the time l>ooks with you showing that? A. I think
you have them.
Q. Mr. Siddons stated that you got them from his office.
528 A. I believe 1 did. I did not notice that you requested them
in your letter.
Q. When we were in Mr. S'iddon’s office a time book was produced
showing that Mr. Sprouse left the work prior to Aug. 25, 1905. Do
you know whether that was correct? A. According to my recol¬
lection that was about the time he was discharged, but the time book
produced at that time gave the date exactly.
(It was mutually stipulated by and between counsel that the
240
FIDELITY STORAGE CORPORATION ET AL. VS.
tii>io book ,*]imvs no record of any service by Mr. Sprouse on this
building after the week ending Ang. 25/05).
Q. Was it any part of Mr. Sprouse’s duty to look aftor the steel?
A. None whatever.
Q. What was his duty? A. To look after the carpenters in put¬
ting up the forms.
Q. Mr. Sprouse has spoken of certain beams overlapping on the
second and third floors, I believe it was. Will vou state the facts
about that? A. It was not so. The steel in no ease overlapped from
one beam t<> the other. The steel a 11 came cut accurately and the
building was built exactly according to plans. It would have been
impossible for the steel to have hipped, if it was cut properly, mid
it Jill came out in proper lengths.
Q. Mere there any rods of any kind which extended over from
one steel beam to the following steel beam which was connected
at the end? A. Yes sir; there were what we call cantilever irons
put in at the junction of the two beam*. That was part
520 of the design of the steel. This (indicating on blueprint)
is illustrated in drawing 582-R, which has been offered in
evidence. In the center of that blueprint are two details, one the
beams C. and I). and the other the beam E. You will notice on
those details that there are certain bars shown on the bottom of the
beams marked 11, 12 and 13. Also at the top of the beams you will
see bars marked 13 and 22. These bars in the top of the beams
marked 13 and 22 are reversed and project out into the bars, lapping
the beam bars 11, 12 and 13.
Q. Is there anything else that occurs to you, Mr. Karrick. that
you want to say in sur-rebuttal of the testimony given on the other
side? A. 1 do not think of anvthing else.
Cross-examination.
Bv Mr. Siddoxs:
%/
Q. Mr. Karrick, referring to the photograph just offered in
evidence, what floor is that top floor shown there? A. I think it
is the third or fourth floor that was living put on; that is my best
recollection.
Q. What two floors, in which you say the steel was shipped
together, wen* you referring to a little while ago when Mr. Clephane
was interrogating you about the inability, because they were shipped
together, to get the steel that you were then ready for at the moment?
A. I think that was the fourth and fifth floors.
Q. The fourth and fifth suspended floors, or the third
530 and fourth general Moors? A. I think it was the third and
fourth general Moors—actual floors. I cannot recall the
exact number of Moors now. I could by referring to some of my
papers.
Q. In correcting your testimony as to the size of the struts, as it
appears on page 20 of your testimony, from 3 by 4 to 4 by 4. if 4 by 4
was tlh' correct size then the struts contained 12.000 feet of lumber,
as you testified at that point; if they were only 3 by 4 they would
TRUSSED CONCRETE STEEL COMPANY. 241
have contained less, would they not? A. Yes sir. I do not re¬
member the figures.
Q. Here is the testimony. Just look at it, on page 26. (Handing
witness the testimony). A. Yes sir; I estimated the struts at 4 by 4
and they would then contain 12.000 feet.
Q. If they had been 3 by 4 they would not have contained
12.000 feet? A. No sir, they would not. 3 bv 4 would not have
been strong enough.
Q. With respect to these rods or beams, or whatever you call them,
to which your attention was directed on this plat or drawing, de¬
scribed as 582-B, those bars do lap do they not, at the point shown
on the drawing here? Please point out if they do not lap. A.
These rods at the bottom do not lap but at the top there are certain
inverted bars that extend from one beam to another.
Q. And they overlap do they not? A. I do not think that would
be the proper word.
531 Q. You do not think they do overlap then? A. No sir.
Q. What would you call it? A. I would say they extend
from one beam to the other at the top of the beam.
Q. But not that they lap, and lap about four feet? A. I should
think that was not the proper term. It would not convey the proper
meaning to me.
JAMES L. KARRICK.
Subscribed and sworn to before me this 9th day of April 1909.
ALEXANDER II. GALT,
Examiner.
Counsel for the Steel Company offers in evidence the first para¬
graph of a letter from Mr. Layton F. Smith to the counsel of the
Steel Co., under date of April 8, 1909, together with the drawing
referred to, and it is stipulated and agreed by and between counsel
for the respective parties that Mr. Smith would have testified to the
contents of said paragraph if put on the stand, and it is agreed that
this letter shall be treated as his testimony. The paragraph referred
to is as follows:
“On account of important business here in Baltimore, I will be
unable to be at Mr. Clephane’s office on Friday the 9th instant at
the time Mr. Karrick’s testimony is taken in sur-rebuttal, but 1 am
handing you herewith two blue prints of my drawing 582-B, which
is similar to the plan put in evidence by Mr. Karrick. You
532 will notice in the center of these blue prints two details, one
of beams C. and D., the other of beam E. You will notice
on these details that there are certain bars shown on the bottom
of the beams marked 11, 12 and 13, also at the top of the beams
you will see bars marked 13 and 22. These bars in the top of the
beams, marked 13 and 22, are reversed and project out into the bars
lapping the bottom bars 11, 12 and 13, undoubtedly this is to what
Sprouse referred when he said that the beam bars lapped five or six
feet, according to the plan these bars lap four feet in each instance,
so that Sprouse was not very far wrong.”
16—2057a
244
FIDELITY STORAGE CORPORATION ET AL. VS.
Brewer, Janus L. Karrick, Henrietta B. Karrick and the Honorable
Louis (’. Barley. .Judge of the Corporation Court of the City of Alex¬
andria, having certified that the said certificate has been signed and
acknowledged by said applicants in accordance with law, the State
Corporation Commission, having examined said certificate now de¬
clares that the said applicants have complied with the requirements
of law, and have entitled themselves to a charter, and it is therefore
ordered that the said David J. Brewer, James L. Karrick, and Henri¬
etta B. Karrick, and their associates and successors be. and they are,
hereby made and created a body politic and corporate, under and by
the name of The Fidelity Storage Corporation upon the terms and
conditions, and for the purpose set forth in said certificate, to the
same extent as if the same were now herein transcribed in full (pur¬
suant to the provisions of An Act of the General Assembly of
537 Virginia, entitled “An Act Concerning Corporations” which
became a law the 21st day of May, 1903) and with all the
powers and privileges conferred and subject to all the conditions and
restrictions imposed by law.
And said certificate, with this order, is herebv certified to the
Secretary of the Commonwealth for record.
BEVERLEY T. CRUMP,
Chairman.
JOHN A. UPSHUR. Clerk.
Commonwealth of Virginia:
Office of Secretary of the Commonwealth.
*
In the City of Richmond, the 26th day of April, 1905.
The foregoing charter of The Fidelity Storage Corporation was
this day received and duly recorded in this office and is hereby certi¬
fied to the Clerk of the Corporation Court of Alexandria, according
to law.
D. Q. EGGLESTON,
Secretary of the Commonwealth.
Virginia :
In the Clerk’s office of the Corporation Court of Alexandria, the first
dav of May, 1905.
The foregoing charter and certificate of the Secretary of the Com¬
monwealth thereon was this day received, duly recorded, and certi¬
fied to the Clerk of the State Corporation Commission.
T6StG *
JOHN S. BEACH, Clerk.
538 Washington. I). C., May 3rd, 1905.
At a meeting of the Board of Directors of the Fidelity Storage
Corporation, duly called, and all being present the following pro- .
ceedings were had:
TRUSSED CONCRETE STEEL COMPANY.
245
On motion it was resolved to purchase the following property, to-
wit. original lot numbered 18, and the east 34 feet 1V 2 inches front
on North V Street, by the full depth thereof of Original lot num¬
bered 17, in Square numbered 205 in the city of Washington, Dis¬
trict of Columbia.
On motion it was resolved to build a storage warehouse, in ac¬
cordance with the plans prepared by Beecher Friz & Gregg, Archi¬
tects.
On motion the following resolutions were adopted:
Resolved. That The Fidelity Storage Corporation enter into a con¬
tract with James L. Karrick to erect the said storage warehouse for
the sum of One Hundred and Fiftv Five Thousand dollars
($155,000) and that the Secretary he empowered to sign such con¬
tract.
Resolved. That the Treasurer he authorized and directed to issue
One Thousand (1000) shares of the stock of the Corporation divided
as follows: Two shares to David J. Brewer for services. One Hun¬
dred and Ninety eight shares to Henrietta B. Karrick, as purchase
price of said lots subject to trust, of $9810.40. with interest at 0%,
from December 29th, 1904, and taxes for the current year. Eight
Hundred shares to James E. Karrick in part payment, for the
539 erection of said warehouse.
Resolved. That the Treasurer he authorized and directed to
deliver to said James L. Karrick the proceeds of said loan of Seventy
Five Thousand dollars. $75,000, as payment on said warehouse.
On motion adjourned subject to the call of the President.
HENRIETTA B. KARRICK,
Secretary.
“Resolved, that The Fidelity Storage Corporation borrow upon the
security of its real (‘state, and the building to be erected thereon, said
real estate being situate in the City of Washington, District of
Columbia, and known as original lot numbered Eighteen (18) and
the East thirty-four feet one and one-half inches front on North
‘T” Street, by the full depth thereof, of original lot numbered Seven¬
teen (17), in square numbered Two Hundred and Five (205), the
sum of Seventy-five Thousand Dollars ($75,000.00) for a term of
five years at a rate of interest not to exceed five per centum (5%)
per annum.
“Resolved further, that the President and Secretarv of the Cor-
poration be and they are hereby authorized and directed to malde
and deliver the promissory notes of said Corporation, aggregating
said sum of Seventy-five Thousand Dollars ($75,000.00) and for and
in the name of said Corporation to execute and deliver a deed of trust
conveying said real estate to secure the same.
540 “Resolved further, that David J. Brewer, the President of
said Corporation be and he is hereby appointed its true and
lawful attorney in fact to acknowledge and deliver said deed of trust
as the act ami deed of the said The Fidelity Storage Corporation.”
The foregoing is a true copy of the Resolutions passed at a meet-
246
FIDELITY STORAGE CORPORATION ET AL. V8.
ing of the Board of Directors of The Fidelity Trust Corporation,
held on the 3rd day of May, A. D. 1905.
[seal.] ‘ HENRIETTA B. KARRICK,
Secretary.
Washington, I). C., June 1 lth, 1905.
At a meeting of the board of directors of The Fidelity Storage
Corporation, and all being present the following proceedings were
had:
On motion it was resolved to authorize and direct The President
to issue and deliver to James L. Karrick a note of eleven thousand
five hundred dollars ($11,500) for one year with interest at —% in
consideration of his paying off the trust of $9816.40 with interest at
6% from December 29. 1904, on the corporation’s lots, also the taxes
amounting to one hundred and eighty four dollars and ninety five
cts., $184.95, also the expenses of incorporating this Corporation.
HENRIETTA B. KARRICK,
Secretary.
541
Stockholder s*’ Mceting.
The regular annual meeting of Stockholders was held at the office
of the Company. No. — King Street, Alexandria, Va., at 1 P. M.
August 15, 1905.
Present: Mr. L. II. Maehen and Mr. J. L. Karrick, the latter hav¬
ing proxies from lion. D J. Brewer and Mrs. Henrietta B. Karrick.
All stock represented.
On motion the officers were reelected to serve another year.
On motion the Treasurer was directed to pav the bill of the Alex-
I 4/
andria Oazette for advertising call of meeting. $2.75, as also Mr.
L. II. MacheiTs lull for rent $10.
There being no further business the meeting adjourned.
HENRIETTA B. KARRICK,
Secretary.
A meeting of tin* Board of Directors of The Fidelity Storage Co.
was held by agreement at the residence of the President on the 30th
day of April, 1900. at the hour of 5 o’clock p. m. Present, all the
members of the Board.
The President having reported that notification had previously
been given to Mr. James L. Karrick to the effect that the provision
in the contract between him and this company for the erection of its
storage warehouse, declaring a forfeiture of $25 per day for each
day's delay in completing said building beyond November
542 15th, 1905. would be enforced, in view of the fact that the
loss to this company exceeded that sum. and that no revenue
had been derived by this corporation from said storage warehouse,
until after said building had been placed under roof to wit. January
24th. 1904. the following resolution was unanimously adopted:
Resolved, that the action of the President in notifying Mr. James
L. Karrick of the enforcement of the clause providing for a pay-
TRUSSED CONCRETE STEEL COMPANY.
247
ment by him of the sum of $2->.00 per day for each day’s delay, in
the completion of its storage warehouse, after November loth, 1905,
be and the same is hereby ratified and approved; and the officers of
this company are hereby instructed to deduct from the compensation
due said Karrick under said contract the sum of $25.00 per day for
each day’s delay, in getting said building under roof, the delay con¬
sisting of a period of seventv (70) days from and after November
15, 1905.
There being no further business the meeting thereupon adjourned.
HENRIETTA B. KARRICK,
Secretary.
543
Stock'haiders' Meeting.
The regular annual meeting of Stockholders was held at the office
of the Company, No. — King Street, Alexandria, Ya., at 2 p. m.
August 15, 1907.
Present: Mr. Louis II. Machen and Mr. J. L. Karrick. Nine hun¬
dred shares were represented, as follows:
Mr. L. II. Machen.Shares
Mr. J. L. Karrick.Shares
Mr. J. L. Karrick (by proxies).Shares
On motion of the officers were reelected to serve another year.
The Treasurer was, on motion, directed to pay the bill of the
Alexandria Gazette for advertising the call of the meeting. $2.75
as also Mr. L. II. Maehen’s bill, $10. rent for year.
There being no further business the meeting adjourned.
HENRIETTA B. KARRICK,
Secretary.
Alexandria, Va., Aug. 3, 1907.
Fidelity Storage Corporation.
Notice is hereby given that the annual meeting of the stockholders
of the Fidelity Storage Corporation will be held at the office of Lewis
II. Machen. No. 212 King street, Alexandria, Virginia, on
544 Thursday, August 15, 1907, for the election of directors for
the ensuing year and the transaction of any other appropriate
business.
DAVID J. BREWER,
President.
aug5 td
Office of the Alexandria Gazette.
Alexandria, Va., Aug. 16, 1907.
I herehv certifv that the annexed Publication was inserted in the
• •
Alexandria Gazette daily until August 15. 1907.
First insertion August 5, 1907.
T. SNOWDEN, Editor.
Cost of advertisement, $2.75.
248
FIDELITY STORAGE CORPORATION ET AL. VS.
545 Exhibit J. L. K. No. 1-A.
Specifications of all labor and material to be used in the erection
and completion of a Storage Warehouse for The Fidelity Storage
Corporation, on the south side of V Street between Fourteenth
and Fifteenth Streets N. W., to be located on Lot No. 18, Square
No. 20r>. according to the accompanying drawings and these speci¬
fications. prepared by Beecher. Friz and Gregg, Architects, Balti¬
more, Md.
General Conditions.
The contractor to take out and pay for all permits and to perform
the work in accordance with the regulations and ordinances of the
District of Columbia. All of the work when finished to be delivered
in a perfect and undamaged state. The building to be thoroughly
denied, glass washed and floors scrubbed, ready for occupancy. All
material to be first quality, free from imperfections. All work to
be done in a first class and workmanlike manner. The owners have
the right to reject any and all bids.
Excavations.
Excavate for the foundation walls, 3' 6" below present grade.
Excavate for *2 elevator pits and for heating boilers as indi-
54b eated on plans. Fill earth around walls as directed. Re¬
move all surplus earth and rubbish from the premises. Yard
to be graded for concrete surface.
Concrete and Cement Work.
All foundations to have footings of reinforced concrete. The first
flooi to be covered with concrete 5" thick, the above concrete to be
composed of one part approved porcelain cement, two parts cleaq
sharp sand and free from loam and four parts broken brick or stone
and gravel, thoroughly rammed into place. Tn addition all floors
are to have a top coat of concrete 1" thick, one part porcelain cement
and one one part clean down river sand.
All work where noted on the drawings to have surface of best
granolithic with base not less than 6" thick, properly graded. A
sufficient bond must be given guaranteeing this work for three years
to be free from cracks, checks, settlement and disintegration.
For concrete in beams and floor slabs use Portland cement, 1 to 3.
of sand. and 5 of broken stone, brick or gravel as above.
Brick Work.
Use best red brick, straight and regular shape, hand made brick
for exterior facing of walls. Arch brick may be used for backing
aip. Front dark red in color, laid in red mortar for pilasters and
cornices the panels to be arch brick in white mortar. AH
«)4< work in first, second and third and fourth story walls to be
laid in cement mortar, one part Portland cement and 3 parts
TRUSSED CONCRETE STEEL COMPANY.
249
clean, sharp, sand. Above fourth floor good cement line mortar,
one part cement and one part No. 1 Washington rock lime, to four
parts sand. Front brick to be laid level and true, tooled joints. Other
walls neatly pointed, all work to be laid straight and true, every
sixth course with headers.
Bricklayer is to set all stone and assist the earpenter in setting all
window and door frames. Line smoke flue with terra cotta flue
lining. Turn arches of four rings over all rear and side openings,
and wherever shown on drawings. Front openings as shown, with
four ring arches on inside courses. Provide and set all stone as
shown.
Front walls and corners to be tied to other walls every 18" in
height with strap iron. Chimney and walls above roof to be laid in
cement mortar, one part cement and one part sand. Lay a damp
proof course of slate in portland. cement at Ground level. The
foundation walls may be of Portland cement concrete, of thickness
and directions of Building regulations, not poorer than 1 cement, 8
sand and 4 broken stone, brick or gravel. If any second hand brick
are used none are to be exposed.
Stone Work.
Front door to have sill of granite, as shown, dressed smooth. All
other work marked “stone” to be of Iluddlestone stone, finished
eight cut and all vertical surfaces four cut. All granite work
r>48 to be set in Portland Cement mortar, as hereinbefore specified.
Floors & Beams.
Floors and beams to be reinforced concrete of the Kahn system,
floors to be 4" thick, beams to project 12" below floor. Beams
spaced 7'—0", all to be tested when 30 days old to 610 lbs. to Sq. ft.
live load without deflection, under the supervision and direction of
the Inspector of Buildings and in all ways to be satisfactory to him
to safely carry 200 lbs. live load and 10 lbs. fixed live load.
Floors to be finished with top of 1" granolithic finish, consisting
of P. C. 1 part sand 2 parts put in before the concrete floor ha£ set,
all other concrete in floors and beams to be 1 part cement—2 sand,
4 broken trap or granite stone or gravel, no lime stone.
Floors of Offices, lavatories and halls to same and to elevator to be
of terrazzo in selected pattern.
Sheet Metal Work.
Main cornice and where noted on drawings to be of extra heavy
galvanized iron # 20, properly secured to metal lookouts. All plain
surfaces to he of corrugated galvanized iron.
Coping, Flashing, etc.
All coping to walls and all flashing to be of # 22 galvanized iron.
250
FIDELITY STORAGE CORPORATION ET AL. VS.
549 Skylights.
Provide skylights of sizes shown on roof plan, with ventilating
louvres in side, and glazed with wire glass.
Stone Work.
Window sills may he of cut blue stone or approved artifieial stone.
Vault.
Walls will bo of brick laid in Portland Cement mortar laid with
\U" chrome steel throughout with burglar proof outer door of most
approved pattern with inner plate of chromic steel %" thick and 1"
chromic steel bars spaced 3" from center to center, an inner door of
steel plate having on inside edge of —, both with combination locks,
see special specifications and guarantees given by contractors.
Glazing.
All windows, doors, etc., to be glazed with wire mesh plate glass
thick.
Heating.
To be approved type steam low pressure gravity system single
?>»!*.
Radiators to be Niagara type cast iron of sufficient capacity to heat
offices, lavatories and adjacent halls to 70 degrees in zero
550 weather and to heat piano rooms to 40 degrees in zero
weather. The boiler pipes to have capacity to furnish steam
to heat double the present piano room, if such should later be
needed.
Plumbing.
All work to be first class in every respect, and in strict accordance
with the Plumbing Regulations of the District of Columbia.
Low down i>olished oak tanks and seats attached to bowls, bowls
comb washout. Basins oval 14" by IS", slab 24" by 36" Vermont
marble on N. P. legs and stands with %" N. P. fuller — traps supply
and waste X. P. Sewer to l>e 8" cast iron down spouts as shown
5" cess pool in stable water supply 3" main, with meter and by pass.
Electric Lighting.
Office portions of building to be wired with concealed wires for
lights as indicated with wall switch for each room. One light cut
out at the vault entrance to burn all night. All other portions of
the building to be wired exposed wire for 16 C. P. light at each cross
beam, with switch for each bay at elevator hall with separate switch
for each floor ball, eight light** for each for mch Elevator hall.
Light fixtures in Office portion to be selected.
TRUSSED CONCRETE STEEL COMPANY.
251
Interior Partitions.
Interior partitions to be of brick when shown all others to
551 l)o of cinder concrete slabs laid in Portland cement mortar 2 //
thickness with 1" grooves top and bottom to cause mortar to
form Keys when laid concrete proportioned 1-2-5. slabs made as
smooth as possible, all laid to make rooms practically air and water
tight.
Door jams hinges and backs to be of iron as per detail drawings
and specifications.
Iron Grilles.
All outside openings on 1st. and 2nd. floor to be protected by
heavy iron grilles, on windows on side and rear 1 inch square rods,
through 2 cross bars by 2" which bars will set 6" in masonry
with turned up ends of 3". Front to be ornamental pattern as shown
in detail.
Hear doors to have expanding gates of ; *4" iron riv — as shown,
with heavy hasp for locks. All outside doors covered with 3/16"
iron riveted on by 3/8 — running through, one for each sq. ft. of
surface as shown.
Elevators.
Passenger elevator as shown with speed of 150 feet per minute
direct connected 210 volt electric Otis pattern or equal, to lift
1200 lbs.
Freight elevator 10 by 17 platform with approved safety clutch
built under platform to have sides free from unloading, eight, cables
to lift car. as shown. 20-horse-power 210 volt Electric Motor direct
connected, capable of lifting loaded van, of not less than
552 8000 lbs. at 50 ft. per minute. Otis pattern or equal.
Elevator grilles for freight will require special design to
protect sides of car. also to protect end and 2 sides of well which
must be automatic, to open only when car is on same floor, closed
at all other times.
T1 le car and grilles and doors for passenger will be neat but simple
design to be submitted.
Roofing.
Roofing to be of 4 ply asphalt slag equal to Warren Ehrets, best
and guaranteed for 10 years.
Plastering.
Plastering only in offices, lavatories adjacent halls and elevator
passage of adamant or other equal hard plaster on concrete slabs or
brick 3 coat work sand finish.
Run stucco cornices on offices and halls 8 by 10".
Stable Fittings.
Stall |w>sts 10" oak guards of oak
fined with #22 galvanized iron,
bv 18".
2" with iron 3" high. Mangers
Cast iron water trough 24 by 36
252
FIDELITY STORAGE CORPORATION* ET AL. VS.
Stairs.
Stair rail and bail listers of iron, design to be submitted.
558
Stairs.
Stairs to be of iron throughout with east rough steps, or of rein¬
forced concrete of Kahn construction or other equally good system,
pattern to bo submitted.
Racks.
Rack.' in trunk room, vault and art room to be of 1" pipe as per
detail, to bold trunks 4' high and in vault 5' high.
Speaking Tube.
Speaking tube from a central point in otliee to each floor at ele¬
vator hall, with hells complete.
Painting.
Painting of ceiling and walls above chair rail *2 coats of water
paint, walls below chair rail anti all chair trimmings to have 2 coats
of liquid glass and 2 coats of hardwood paint, doors to have 2 coats
of shellac and 2 coats of best coach varnish rubbed down.
All galvanized iron work to be thoroughly washed with vinegar
undiluted, then given one thin coat of metallic and linseed oil, fol-
lowed by two coats of white lead and oil. colored as per samples to
he approved.
All other walls, ceilings and partitions to have 2 coats of white
cold water paint. All interior metal to have coats of asphaltum
paint.
554 Trimmings.
Office counter of cement with marble top 's” thick.
All trimmings in oflice to he of moulded cement run in place.
Doors of Oflice of hardwood with old colonial brass trimmings
eorbin locks. 0724 A.
Office grilles and fittings and wire glass partitions for ladies’ wait¬
ing room and private office as per detailed drawings.
Exhibit J. L. K. No. 2.
L. R. No. 1-1751, 1908.
P. C. D.
United States of America.
Department of Agriculture.
Washington, D. C., Xoremher 13, 1008.
Pursuant to Section 882 of the Revised Statutes, I hereby certify
that it ap|tears from the records of the U\ S. Weather Bureau, Wash¬
ington. D. C. y that the attached copy of the original records, made
• TRUSSED CONCRETE STEEL COMPANY.
253
under the direction of a regular < hserver of the U. S. Weather Bureau
at Washington, I). C., on the dates specified, has been compared
with and is a true copy of the records on file in the Weather Bureau.
2 II. E. WILLIAMS,
Acting Chief U. S. Weather Bureau.
Be it known that IT. E. Williams, who signed the foregoing certifi¬
cate, is the Acting Chief of the U. S. Weather Bureau, and that to
his attestation as such full faith and credit are and ought to be given.
In witness whereof I have hereunto set my hand, and caused the
seal of the Department of Agriculture to he affixed, on this thir¬
teenth dav of November, one thousand nine hundred and eight.
F seal. 1 W. M. HAYS,
Acting Secretary of Agriculture.
' Insert title of office.
* To l>e signed by the official in charge of the Bureau.
556 V. S. Department of Agriculture, Weather Bureau.
Monthly Meteorological Summary.
Station, Washington, D. C.; Month, October, 1905.
Temperature.
(Degrees Fahrenheit.)
Date.
Max.
Min.
1
88
56
2
81
61
3
73
49
4
80
49
5
85
53
6
67
49
mm
i
67
43
8
69
40
9
83
45
10
79
54
11
69
46
12
54
41
13
63
36
14
78
43
15
76
46
16
80
56
17
66
54
18
77
55
19
74
65
20
69
49
21
53
37
22
55
33
23
56
38
24
67
38
25
54
48
254
FIDELITY STORAGE CORPORATION ET AL. V9.
Date.
Max.
Min.
48
43
27
58
44
28
61
48
29
53
40
30
56
34
31
62
34
Mean
67.8
46.0
557
U. S. Department of Agriculture, Weather Bureau.
Monthly Meteorological Summary’.
Station, Washington, D. C.; Month, November, 1905.
Temperature.
(Degrees Fahrenheit.)
Date.
Max.
Min.
1
60
37
2
47
31
3
50
30
4
56
31
5
56
32
6
69
48
7
51
41
8
52
39
9
47
39
10
46
30
11
52
27
12
68
29
13
57
45
14
45
21
15
47
20
16
52
41
17
56
39
18
55
39
19
45
37
20
39
32
21
45
27
22
56
25
23
64
25
24
68
32
25
68
48
26
58
42
27
52
36
28
48
36
29
73
48
30
49
25
Mean
54.4
34.4
TRUSSED CONCRETE STEEL COMPANY.
255
008 L. S. Department of Agriculture, Weather Bureau.
Monthly Meteorological Summary.
Station, Washington, 1). C.; Month, December, 1905.
Temperature.
(Degrees Fahrenheit.)
Date. Max. Min.
1 34 18
2
40
3
48
4
38
wm
0
39
6
45
7
55
8
59
9
43
10
44
11
53
12
59
13
52
14
40
15
32
16
32
17
40
18
43
19
44
20
42
21
54
22
58
23
54
24
39
25
39
26
44
27
49
28
50
29
o7
30
47
31
40
Mean
45
27
38
27
26
21
26
29
37
33
28
27
34
32
23
26
24
19
28
28
39
42
39
31
22
26
30
23
45
36
27
6 29.4
256
FIDELITY STORAGE CORPORATION ET AL. VS.
559 U. S. Department of Agriculture, Weather Bureau.
Monthly Meteorological Summary.
Station. Washington, D. C.; Month, January, 1906.
Temperature.
(Degrees Fahrenheit.)
Date.
Max.
Min.
1
45
26
42
26
3
45
34
4
62
40
5
49
32
6
43
32
7
48
28
8
39
22
9
30
16
10
39
11
11
42
26
12
47
34
13
40
32
14
38
32
15
39
35
16
58
38
17
45
35
18
54
39
19
47
33
20
57
39
21
63
44
22
71
50
23
71
42
24
43
33
25
34
26
26
34
29
27
45
33
28
50
36
29
49
35
30
53
34
31
52
36
Mean
47.5
32.5
560 Me m oran (hi m .
For copy of Contract between The Trussed Concrete Steel Com¬
pany and the defendant. Karrick. see Exhibit No. 1 to Original
Bill, page 10.
TRUSSED CONCRETE STEEL COMPANY.
257
561
Exhibit J. L. K. No. 1.
Washington, I). C., May 3 rd , 1905.
Acting under power vested in me this day by the directors of The
Fidelity Storage Corporation, 1 hereby authorize Janies L. Karrick
to erect a storage warehouse on our lot number 18, square 205,
according to plans and specifications, prepared by Beecher, Friz
and Gregg, Architects, for which we agree to pay him the sum of
One Hundred and Fifty Five Thousand dollars ($155,000.00).
The said warehouse to be completed and possession given us on or
before November loth 1905. A penalty of $25.00 per day will
be exacted for each day’s delay, beyond that period, as liquidated
damages, for such delav.
o i
THE FIDELITY STORAGE CORPORATION.
HENRIETTA B. KARRICK. Secretary.
Accepted May 3rd, 1905.
JAMES L. KARRICK.
562
Baltimore, Md., April 13, 1905.
In re Karrick W arehouse.
James L. Karrick, Esq., Washington, D. C.
Dear Sir: Replying to your favor of April lltli, will say that
the drawings from Messrs. Beecher, Friz A Gregg, will be ready
for us to-dav, and we will send them on immediately to our home
office. We would not advise the use of broken brick mixed with
gravel for the footings proper, but it might be all right however
to use this mixture in the walls.
We are pleased to hear that your loan is satisfactorily settled
and hope you will be able to get started on your building at once.
Our Air. Smith at present is in Atlanta but our Mr. Robinson will
be in Washington tomorrow and will call upon you.
Very trulv vours,
TRUSSED CONCRETE STEEL CO.
F. S. ROBINSON,
Per M. S.
563 (No date—referred to as “letter dated about April 14th.)
(Karrick to Trussed Steel Co.)
In reply to your favor 13th—I was sorry to miss the call of Mr.
Robinson. You do not state whether broken brick and gravel would
answer for beams and floor slabs. I have an opportunity now to
secure a quantity of broken brick at a considerable saving over
cost of gravel, and would be glad to hear from you at once.
Y. T ”
17—2057a
258
FIDELITY STORAGE CORPORATION ET AL. VS.
564 Karrick and Metcalf. Washington, D. C.
May 6, 1905.
The Trussed Concrete Steel Co., Mr. Layton F. Smith, 619 N.
Calvert St., Baltimore, Md.
Dear Sir: In reply to yours of May 5th, the contract to use
your system was signed on the condition of the acceptance of your
system by the building inspector of Washington and the W. L. & T.
Co. Both of the above having accepted the system cancel those
conditions. This does not however cancel or change your guarantee
of efficiency to withstand the test to be imposed by the building
inspector.
Yours trulv.
JAMES L. KARRICK.
565 Karrick and Metcalf. Washington, D. C.
May 18, 1905.
Trussed Concrete Steel Co.. Detroit. Mich.
Gentlemen : Your letter of the 16th received. The bill of lading
has been received but the steel has not vet arrived. We are all
•/
ready for it. I trust the steel has been ordered for the 2nd floor
as we will be ready for a portion of that inside of two weeks. The
architects informed me that Mr. Smith has not vet received the
revised plans. I trust these have gone forward or will be sent at
once as we are alreadv delayed in some of our work for lack of them.
Yours trulv,
JAMES L. KARRICK.
566
May 20. 1905.
Mr. James L. Karrick. 1338 G Street X. W., Washington, D. C.
Dear Sir: Replying to your letter of May 18 with reference to
steel for the second floor, beg to state that this order has been
placed with our works and they have been instructed to ship same
immediately, as it would be needed within ten (lavs’ time. We think
this material will reach vou in due time for vour work and will
« «
do all in our power to hurry same along.
Regarding revised plans. This matter has been banded to our
engineering department from whom you will receive advice regard¬
ing same.
Verv trulv,
TRUSSED CONCRETE STEEL CO.
567
Mr. James L. Karrick. 1333 0 Street
June 12, 1905.
N. W., Washington, D. C.
Dear Sir: We take the liberty of calling your attention to your
account of May 12 amounting to $468.78, which amount is now
due. We would thank you very much to pass a voucher in our
favor for this amount, obliging,
Yours truly,
TRUSSED CONCRETE STEEL CO.
TRUSSED CONCRETE STEEL COMPANY.
269
568 June 19, 1905. *
Mr. Jas. L. Karrick, 1333 (1 Street N. W., Washington, D. C.
Dear Sir: On the 12th inst. we wrote you, advising that your
account of May 12th, amounting to $468.78, fell due on* that date.
Not having heard from you to date, we suspect that this matter
has escaped your attention and we heg to request your check for
above amount at vour earliest convenience.
Yerv truly vours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
569 July 5, 1905.
Mr. Jas. L. Karrick, 1333 G Street Northwest, Washington, D. C.
Dear Sir: Will von kindlv inform us at vour convenience the
c « •
date of arrival of our two shipments of May 20. and oblige
Very truly,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
570 July 8, 1905.
In re Fidelity Storage Warehouse.
James L. Karrick, Esq., 1333 O Street N. W., Washington, D. C.
Dear Mr. Karrick: After a thorough consideration of changing
the construction of the floors of your warehouse from solid concrete
to tile construction. I find that the additional steel which is required
would cost Fifteen Hundred Dollars’ ($1500.00) and that the tile
would cost you Fifty-two Hundred and Fifty-six Dollars ($5256.00)
both f. o. h. care Washington.
rile amount of concrete which vou would save in this construe-
t j
tion would he very small. In fact I do not believe that it would
amount to more than Eight Hundred Dollars ($800). The labor of
constructing the tile floor would undoubtedly be less than for the
solid concrete floor on account of the fact that vou would have very
• *.■
few beams. I will be in Washington on Monday of this coming
week and will stop in and see you regarding this matter.
Yerv truly yours,
LAYTON F. SMITH,
Per M. S.
LFS/MS.
571 July 10, 1905.
Mr. James L. Karrick, 1333 G Street N. W., Washington, D. C.
Dear Sir: We wrote you on the 5th, asking you to advise us as
to the date of arrival of our two shipments to you of May 29. Hav¬
ing received no reply, we beg to again remind you of same, and
would ask that you also advise as to the date of arrival of our ship¬
ments of June 6 and 16th.
Thanking you in advance, we beg to remain,
Yerv truly,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
260
FIDELITY STORAGE CORPORATION ET AL. VS.
572 Karriek and Metcalf. Washington, D. C.
July 10th, 1905.
Trussed Concrete Steel Co., Detroit, Michigan.
Gentlemen: In answer to your letter of July 5th, will sav that
goods were received June 7th.
A ours truly,
JAMES L. KARRICK.
Karriek and Metcalf, Washington, IX C.
July 12tii, 1905.
Trussed Concrete Steel Co., Detroit, - ..eh.
Gentlemen: In answer to vour letter of July 10th will say that
shipment of June 16th arrived at the freight depot a day or so ago
and we have just gotten it to day.
Yours truly,
JAMES L. KARRICK.
573 (Copy.)
July 12, 1905.
Mr. James L. Karriek, 1333 G Street N. W., Washington, D. C.
Dear Sir: We have your favor of the 10th, advising us that the
material shipped you on May 29, reached you on June 7. The ac¬
counts. covering same, are, therefore, now passed due and we beg
to say that we shall greatly appreciate a prompt remittance from
you. The amount now due is $3392.95.
Trusting vou will favor us with vour check at vour earliest con-
venience, we remain,
Very truly vours,
TRUSSED CONCRETE STEEI. CO.
Credit Dep’t.
574 Karriek and Metcalf. Washington, D. C.
July 14, 1905.
The Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen: In reply to your favor of the 12th instant, 1 was
under the impression that your contract read, terms j>ayment 30
davs after each lloor was in, this was what we talked over verbally
«.• 7 %/
and I supposed the written contract was so worded. With this in
my mind 1 have arranged my payments accordingly. I expect to
pay for the footings in 30 days, the 2nd floor in 30 days after it was
in. I hope to get this completed in about 4 or 5 days from now,
the 3rd floor we cannot begin for about ten days and would expect
to complete in about 8 or 10 days from time of starting.
I have arranged to carry the building to the 4th floor with my own
resources and do not get an advance payment from the trust until
that floor is on. If I hau not supposed the above to be the terms of
payment l would have prevented you from shipping until material
was needed. However after I begin to get my advance the matter
TRUSSED CONCRETE STEEL COMPANY. 261
of terms will not be important. Trusting this will be satisfactory,
T am
Yours truly,
JAMES L. KARRICK.
575 (Copy.)
wr. James L. Karrick, 1333 G Street N. W.,
July 18, 1905.
Washington, D. C.
Dear Sir: We are again obliged to remind you of your two ac¬
counts of May 29, amounting to $3392.95. This material arrived
on June 7, as vou advised us under date of July 10, and these ac-
counts are, therefore, considerably overdue. We wrote you on the
12th inst., requesting payment of same but have received no ac¬
knowledgment of our letter.
Our obligations this month are extremely heavy and we find it
impossible to extend our terms of payment beyond the specified
time. You must be alive to the fact that it becomes more than an
inconvenience when our collections do not come in promptly, and
we trust, therefore, that you will favor us with an immediate remit¬
tance covering these two accounts.
Thanking you in advance, we beg to remain,
Yerv trul v vours,
«/ %} •
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
July 21, 1905.
Mr. James L. Karrick. 1333 G St. X. W., Washington, D. C
Dear Sir: We are in receipt of yours of the 14th instant, arid in
reply would say we are at a loss to understand how you gained your
impression as to the terms of vour contract with us. If vou will re-
fer to same, you will find the following provision - ‘‘Payments
to be made for each shipment 30 days net cash after arrival of ma¬
terial at Washington.” It seems strange to us that with a copy of
this contract in your possession you should have proceeded on any
other basis. As to the material having arrived somewhat more
rapidly than you were prepared to use it we would say that we have
taken this precaution in order to safeguard your interests. The con¬
dition of the steel market is such that we cannot guarantee shipments
under four weeks from the time the order is placed, and we, therefore,
placed the entire order with our works with instructions to ship
same as regularly as possible and as soon as the material could be
gotten out. If this is not agreeable to you, you will have to run the
risk of having your work held up, as if we are to await your orders
for each shipment your work will be side-tracked and have to take
its regular turn like any other new order.
Tn view of our having written you inquiring so particularly as to
the dates of arrival of the various shipments, you should have real¬
ized that your conception of the contract was in error.
577 We wish to set you right on this point and to assure you that
our terms are never based upon the using of the material,
but are always based either upon its date of shipment or date of ar-
262
FIDELITY STORAGE CORPORATION ET AL. VS.
rival. We must, therefore, a.-k vou to favor us with your check for
$8392.05. covering your accounts of May 29, which arrived on the
7th of June. We would also ask - you to advise us as to the arrival
of our shipment of June 6th and 16th.
Trusting you will favor us with your immediate remittance, and
that you realize the justice of our position, we remain,
Verv trulv,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
578 July 26, 1905.
Mr. .101110“ L. Karrick. 1333 0 Street N. W., Washington, I). C.
Dear Sir: Having received no acknowledgment in the form of
a check in answer to our letter of the 21st, we wish to advise vou that
we expect same by return mail. Failing this, we shall be obliged
to have recourse to more stringent measures.
Trusting that you will not force us to such a step, we remain,
Yerv trulv yours,
TRUSSED CONCRETE STEEL CO.
Credit Department.
Western Union Telegraph Company.
Detroit, Mich., July 27, 1905.
James L. Karrick, 1833 O Street N. W., Washington, D. C.:
We insist upon immediate payment in full of our accounts; other¬
wise begin proceedings.
TRUSSED CONCRETE STEEL CO.
579 Karrick and Melcalf,
Washington, 1). C.
July 26th, 1905.
The Trussed Concrete Steel Co.. Detroit, Mich.
Gentlemen: In reply to your favor of the 21st instant will say
that 1 cannot agree with you that because of possible delays in get¬
ting out steel tliat you should deliver goods weeks before they are
required and then expect me to pay for them at an inconvenient
time for me. If i( takes vou four weeks to deliver goods vou should
notify me of that fact and I will make such allowance of time when
I write you to make shipment. Acting on the same reasoning you
might ship the entire order at one time and expect me to pay for it
months ahead of the time it is used, as you have done on the stair
material now. When the contract was made I did not know that
the material had to be gotten out of order. 1 do not want my work
side-tracked and now give you notice that I will he ready for the
4th floor material in three (3) weeks time, anv delav bcvond that
• « «.
mav be a serious matter.
%
Now about payment, the material for tin* 2nd floor is due, the
material for the 3rd floor I do not consider due until 30 davs from
TRUSSED CONCRETE STEEL COMPANY.
263
this time or later, as we have not begun to use it yet, and would not
have ordered it to be delivered until this time, but I believe in these
contracts it is better to give and take a little rather than attempt to
hold to the rigid line on either side. As I wrote you I get my
580 first advances from the trust when the 4th floor is on and
suggest that you use my notes at 6% interest to carry this
payment over that period. At some future time I can probably
repay the accommodation by making payment in less than 30 days.
Very truly,
JAMES L. KARRICK.
July 28, 1905.
Mr. James L. Karrick, 1333 G Street X. W., Washington, I). C.
Rear Sir: We wish to confirm our telegram of even date, read¬
ing: “Will accept cash payment 2nd floor material, 30 day note
for 3rd floor. Insist upon settlement immediately. Answer.” Upon
receiving your check for $1701.41, and your note for $1691.54, we
will place your order for 4th floor material to be shipped in three
weeks, as per your letter of the 26th.
Trusting same will be entirely satisfactory and that we will not
be obliged to take any action which may delay your work we remain,
Very truly,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
581
Karrick and Metcalf,
Washington, I). C.
July 29, 1905.
Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen: As per your telegram I enclose check for $1691.54
for 2nd floor steel, and note for $1701.41 for 3rd floor steel. I have
dated the note back and made it sixty days so that I could run it a
few days over 30 days to cover any possible delay in getting on my
4th floor and my advance at that time. If the steel arrives in time
it will not be 30 days, unless prolonged interruption from weather.
Still it is better to have the few extra days as some one whose signa¬
ture is necessary might be out of town for a day or so. Now about
the language in vour letters and telegrams. I consider them un¬
called for and take exception to them. I concede the point of send¬
ing the note as 1 proposed as a matter of convenience to you. Now,
I trust there* will be no necessity in the fture for irritating language
on either side. I trust the 4th door material will arrive on time as
ordered and all other parts as will be ordered from time to time as
1 don’t want to be under the necessity of addressing you in the terms
to which you have established a precedent.
Yours truly,
JAMES L. KARRTCK.
264
FIDELITY STORAGE CORPORATION ET AL. VS.
582 Detroit, Mich, July 31, 1905.
Mr. James L. Karrick. 1333 (5* Street N. W\, Washington, I). C.
Dear Sir: We beg to acknowledge receipt of your favor of the
29th, enclosing check for $1691.54. and your 60 day note, dated
July 15th, for $1701.11. hearing 6'7 interest. We note your reasons
for dating back the said note and making it for sixty days instead
of thirty, and beg to sav that the same is satisfactory to us. We will
see to it that your 4th floor material reaches you at the proper time.
We regret that you feel aggrieved at the tone of our correspond¬
ence concerning your accounts, hut vour very evident misconstrue-
tion of vour contract with us. when taken into connection with the
considerable amounts involved rendered it necessary for us to take
a very firm position. We are glad that you have seen fit to accede
to the same and trust that we will have no further cause for mis¬
understanding.
We return herewith receipted invoices.
Thanking you for your check and note, we remain
Very truly yours.
TRUSSED CONCRETE STEEL CO.
583 Karrick and Metcalf,
Washington, D. C.
August 5, 1905.
Trussed Concrete Steel Co., Detroit. Mich.
Gentlemen: 1 find we are making better progress than 1 antici¬
pated on the third floor, so that if you can hurry up the 4th floor
material we will he glad to receive it at anv time. Please order the
5th floor material to be shipped not later than two weeks from the
shipment of the 4th floor.
Very truly,
JAMES L. KARRICK.
Aug. 8th, 1905.
Mr. Janies L. Karrick, 1333 G Street X. W.. Washington, D. C.
Dear Sir: Vour favor of Angus 5 received, and note that you are
making better progro** on the 3rd floor of your building than was
anticipated. We have instructed our works to ship 4th floor material
to you immediately, and will also instruct them to ship the 5th floor
material not later than two weeks from the date the 4th floor ma¬
terial goes forward.
Yours truly,
TRUSSED CONCRETE STEEL COMPANY.
584 Western Union Telegraph Company.
Aug. 11, 1905.
The Trussed Concrete Steel Co.. Detroit:
When will fourth floor steel he shipped.
JAMES L. KARRICK.
TRUSSED CONCRETE STEEL COMPANY.
265
Aug. 12, 1905.
Mr. James L. Karrick, 1333 G Street X. W., Washington, D. C.
Dear Sir: Your telegram received, reading as follows: ‘‘When
will fourth Moor steel he shipped/' We immediately wired our
Pittsburg works instructing them to advise you hv wire the date
this shipment would go forward, and trust you have received full
information ere this.
Yours trulv,
TRUSSED CONCRETE STEEL CO.
585 Aug. 17, 1905.
Mr. James L. Karrick. 1333 (1 Street X. W., Washington, D. C.:
Dear Sir: Enclosed find ILL dated August 15th, for P. C. C. A
St. I,. Car #14158. which is loaded with steel bars for the second
floor of your building. This shipment is covered by our order
#1235 and #1236, which will appear on billing sent you under
separate cover.
Yours trulv,
TRUSSED CONCRETE STEEL COMPANY.
586 Pittsburg, Pa., August 23, ’05.
Mr. James I,. Karrick. Washington, D. C.
Dear Sir: Answering yours of the 22nd. wo beg to advise you
that car mentioned in vour letter was delivered to the P. A. E. Rv.
*
at Williamsport. Pa. on tin* 17th inst., which is last record of ca*.
We have tracer after same and will advise you of forwarding.
Yerv trulv vours,
TRUSSED CONCRETE STEEL CO.
LOUTS KAHN.
W. R.
587 Pittsburg, Pa., August 26, ’05.
Mr. James L. Karrick, Washington, D. C.
Dear Sir: With further reference to steel for Karrick Ware¬
house, advise that car containing steel passed Marysville, Pa. 21st
inst.
Very truly yours,
TRUSSED CONCRETE STEEL CO.
LOUIS KAHN.
W. R.
588 Karrick & Metcalf,
Washington, D. C.
August 28, 1905.
The Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen : Please deliver the sixth floor material not later than
Sept. 28th.
Yours truly,
%} w
JAMES L. KARRICK.
266
FIDELITY STORAGE CORPORATION ET AL. VS.
589 August 30, 1905.
Mr. .James L. Karrick, 1333 G St. N. W., Washington D. C.
Dear Sir: We are in receipt of your favor of Aug. 28, and will
ship the sixth floor material not later than September 28. We
assume that September 28 is tin* date you wish us to ship the ma¬
terial. making no allowance for the time consumed in transit.
Yours truly,
TRUSSED CONCRETE STEEL CO.
Karrick A Metcalf,
Washington, D. C.
Sept. 1, 1905.
Trussed Concrete Steel Co., Detroit. Mich.
Gentlemen: In answer to your letter of August 30, I intended
the order for the 6th floor material to be ilclivered not later than
September 28th.
Yours trulv,
JAMES L. KARRICK.
590 Karrick and Metcalf.
Washington, I). C.
Sept. 15, 1905.
Trussed Concrete Steel Co.. Detroit, Mich.
Gentlemen: Your favor of the 12th instant received. I paid
my note of $1701.41 and interest yesterday. The shipment of 4th
and 5th floor material arrived August 23, the 4th floor or VL> the bill
less freight .$112.71 I will Ik* prepared to pay for when due, Sept.
23. The 5th floor I began to use September 12th and it should be
due 30 days from that time.
I trust we are not going to have another misunderstanding over
this matter.
It is a great annoyance and expense to me to have two floors
shipped at one time. First I have to pay demurrage on car as I
have no facilities to handle such a quantity in 24 hours, then extra
floor is greatly in my way and has to be handled an extra time when
1 am ready to use it. making a heavy expense. These things I was
willing to submit to for the certainty of having material on hand
when wanted, but I do object when you demand payment before
goods arc used. 1 trust there will he no further misunderstanding
about this matter. I have ordered the 6th floor material to be deliv¬
ered September 2Sth. and now request that you deliver the 7th floor
by Oct. 12th The la-t shipment contained the wall irons not bent as
heretofore. I had this done by a blacksmith. Do you want me to
do this in the future?
Yours trulv.
JAMES L. KARRICK.
TRUSSED CONCRETE STEEL COMPANY.
267
591
Trussed Concrete Steel Company.
Detroit, Mich., Sept. 22, 1905.
Mr. Janies L. Karrick, 1333 G Street N. W., Washington, D. C.
Dear Sir: In reference to your favor of the loth, beg to acknowl¬
edge payment of your note, of which we were advised through our
bank. We note that you will pay one-half of our invoice of August
15, less freight, tomorrow. We do not understand why both the
fourth and fifth floors should have gone forward at the same time, as
a careful inspection of all our orders to our works show- that they
were definitely instructed to allow two weeks to elapse between ship¬
ments. We believe that you will receive your sixth floor matrial
promptly on or before the 27th instant, as we have given explicit
orders to our works to this effect. We note that you expect to meet
the balance of the above invoice on October 12. This is satisfactory
to us.
Very truly,
TRUSSED CONCRETE STEEL CO.
R. S. HOGE.
Credit Dep’t.
592 Pittsburg, Pa., Sept. 25, 1905.
James L. Karrick, Washington, D. C.
Will ship sixth floor material this week.
TRUSSED CONCRETE STEEL CO.
Mr. Smith of Detroit. Can you hurry this matter?
positive it would be del. by 28th.
Thev were
K.
Karrick and Metcalf,
Washington, D. C.
Sept. 28, 1905.
Trussed Concrete Steel Co., Detroit, Michigan.
Gentlemen: In reply to your favor of the 21st we find that
there is an excess of 125 of #7 bars and 30 of #10 bars. We have
used a few of these bars where we have run short on some other
numbers. You can make allowance for this on the 8th and 9th
floors. I am greatly disappointed at the non-arrival of the 0th floor
material. I telegraphed the Pittsburg house and got reply that ma¬
terial would be shipped this week. This may mean a delay of 7 or
8 davs bevond the time set. This delay as vou know may be a seri-
oils matter as our building regulations do not allow concrete
593 construction during freezing weather. I trust you will look
out for this in the future and not delay me a day again.
Yours truly,
JAMES L. KARRICK.
268
FIDELITY STORAGE CORPORATION ET AL. VS.
Trussed Concrete Steel Company.
Detroit. Michigan, Oct. 2, 1905.
Mr. James L. Karriek, 1333 G Street N. W., Washington, D. C.
Dear Sir: We have your favor of the 28th in regard to excess
bars for the Fidelity Storage Co. Building. We would say that the
excess number that you mention is practically the same as we figured
on your having over at this time. We will see to it that proper
shipment as regards number of burs is made for the eighth and
ninth floors.
In regard to the delay on the sixth floor material for this build¬
ing. would say that we regret this very greatly. Our Pittsburg works
are so swamped with orders that it has been impossible for us to
turn out this material at an earlier date. We assure vou that we will
use our best efforts to see that you are not bothered again in this
way.
Yours verv truly,
TRUSSED CONCRETE STEEL CO.
S. M. FECI III El MER, Engineer.
594
Trussed Concrete* Steel Company.
Detroit, Mich., Oct. 4, 1905.
Mr. James L. Karriek. 1333 G Street X. W.. Washington, D. C.
Dear Sir. We beg to advise you that shipment of the 6th floor
steel for tin* Karriek Warehouse left Pittsburg vesterdav. and will
be followed through with wire tracer. We sincerely regret the de-
lav in connection with this, hut vou can readilv understand that
• • •
at this time of the year, everybody is clamouring to finish his work,
and our works are absolutely swamped.
We have instructed our works to proceed at once with the next
floor and shall do our best to arrange so that you will not be held
up by this shipment.
Verv truly vours.
TRUSSED CONCRETE STEEL CO.
A. GREGORY.
595
Reiu ttai. No. 1.
(Copy.)
Karriek and Metcalf,
Real Estate and Loans,
1333 G. St, N. W.
Washington, D. C., Oct. 12. 1905.
Mr. Layton E. Smith, 012 X. Calvert St.. Baltimore. Md.
Dear Sir: I wanted to >ee you fh>t about the steel for the elevator
well. You remember J called your attention to this when the plans
first came in and after vou wrote the home office about it they made
TRUSSED CONCRETE STEEL COMPANY.
269
an extra shipment of two bars, 20'-0", which we used in the second
floor. I supposed until recently that this error had been corrected
with each shipment. The bars have come for three and fourth floors
only 18'-(>" and my concrete man has used them without calling my
attention. This was no error on his part as he did not know that
there had been any correspondence and simply used the bars in the
place they were indicated on the plans. This has given us a lapof only
3Vi>" at each end. The foreman states that he was very careful to
see that this was evenly distributed and that it lapped fully over on
one bar in the engaging beams. 1 fear that this is not sufficient,
especially as a slight crack has developed in one of the engaging
beams. We have two beam bars left, 19'-6" in the fifth floor, which
we will be putting on in a day or two. but the sixth floor and all
above should have bars of sufficient length. Twenty feet the length
you sent for the first floor i< a trifle too long, 19'-8" would be
about right. If von will be over in a few davs I would like
to talk with you then about the roof plans, and show you
these beams. If possible let me know the day before you come.
There has been a long delay on this fifth floor material, which is
going to cause us lots of trouble when freezing weather comes.
Yours truly,
JAMES L. KARRICK.
597 Karrick and Metcalf,
Washington, D. C.
Oct. 14th, 1905.
Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen: In reply to yours of the 12th instant, T am glad to
know that 7th floor steel has been shipped as the 6th floor is just
being delivered today, being about two weeks in transit.
Now about payment of your account. I get a considerable ad¬
vance when the 6th floor is in and relying on your several letters,
stating that tin* steel would be on hand not later than September
28th, I took advantage of some cash discounts and checked down my
balance as close as I dared to, counting on this new advance to pay
for the 6th floor material. I expect to get this floor completed by
the 21st. and the advance at about that time, when T will send vou
a check. This delay has been a very serious matter to me in other
wavs than the above.
Yours truly, JAMES L. KARRICK.
598 Oct. 16th, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, D. C.
Dear Sir: We are disappointed in receiving your favor of the
14th instant; instead of the check which we had expected the latter
part of last week. We had counted upon receiving same without
delay, as our large volume — business at this time of the year makes
it imperative that we make collections promptly. We note that you
intend to complete the 6th floor bv the 21st instant ; at which time
you will secure a sufficient advance to enable you to take care of
270
FIDELITY STORAGE CORPORATION ET AL. VS.
your account. Please do not permit anything to further delay set¬
tlement.
Very truly yours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
599 Exhibit Rebuttal No. 2.
(Copy.)
Baltimore Office
Trussed Concrete Steel Company,
608 Fidelity Building.
Baltimore, Md., October 20. 1905.
In re Ivarrick Warehouse.
James L. Karrick, Esq., 1333 G Street, N. W., Washington, D. C.
Dear Sir: I return to you herewith your sketches relative to the
roof of the Fidelity Storage Warehouse, as requested by you when
you loaned them to me.
*
Very truly yours,
LAYTON F. SMITH,
Per M. S.
Enclosures.
600 Oct. 24, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, D. C.
Dear Sir: We beg to remind you that the balance of your ac¬
count of August 15th, amounting to $1677.65, is now payable. In
accordance with the terms of your favor of the 14th instant, wo
have lioon expecting to receive your check and trust that nothing
will interfere to delay payment.
When remitting, kindly advise us as to when you wish the 8th
Hour shipped. We presume the 7th floor material has now reached
you. or will in the course of the next day or two. If so, you will
probably wish the 8th floor to go forward in the course of a week or
ten days.
Trusting that we may receive your check promptly, and assuring
you that we shall endeavor to avoid further delay, we are,
Wry truly yours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
601
Karrick and Metcalf. Washington, D. C.
Oct. 25, 1905.
Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen: Enclosed please find my check for $1669.64 in set¬
tlement of the enclosed bill.
As follows:
TRUSSED CONCRETE STEEL COMPANY.
271
Check Sept. 23rd.
Freight .
Blacksmith work 2 days
Check today.
«/
$1677.64
112.71
9 00
1669.65
$3468.00
The blacksmith work is for bending all anchor irons for 3 (loors,
welding pieces on bars for elevator opening, beam for 6th floor and
making 15 anchor wall irons, which were lacking but we used some
foundation iron that was left over. I trust the above is satisfactory.
In reply to your letter of Oct. 23. 1 will need the steel for the 8th
Hoor by Nov. 12th. and as it takes about two weeks to get the steel
through, it should be started in time.
Yours truly,
JAMES L. KARRICK.
602 Oct. 27th, 1905.
Mr. James L. Ivarrick, 1333 (1 Street, X. \Y., Washington, I). C.
Dear Sir: We beg to acknowledge your favor of the 25th in¬
stant, enclosing check for $1669.64, in final payment of our invoice
of August loth. We note your deduction of $8.00 for blacksmith
work, which, under the circumstances, we feel is properly charge¬
able to us and are, therefore, glad to allow same.
W T e are notifying our Pittsburg works today to use their best ef¬
forts to ship your 8th floor material in ample time.
Thanking you for your remittance, we are
Yerv truly vours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
Oct. 27, 1905.
Mr. James L. Karrick, 1333 (1 Street, X. W\, Washington, D. C.
Dear Sir: We have your letter of the 25th and note that you
desire the 8th Moor steel by Xov. 12th. W T e have written our Pitts¬
burg works accordingly and will inform vou promptly when ship¬
ment is made.
Very trulv.
TRUSSED CONCRETE STEEL CO.
603
Karrick and Metcalf, Washington. I). C.
November 4th, 1905.
Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen : I have been expecting to receive notice of shipment
of 8th floor material. This should be shipped immediately if it is to
arrive on time. Any further delay will cause me great trouble and
expense, through causing me to do the work in freezing weather. I
trust this will not occur.
I notice that each shipment is 8 of the large anchor bars short,
272
FIDELITY STORAGE CORPORATION ET AL. VS.
tin* plan calls for them hut the schedule of material is short that
number. We have heretofore made them out of other bars left
over.
Yours truly,
JAMES L. KARRICK.
604 Nov. H, 1905.
Mr. James L. Karriek, 1555 (i Street. N. W., Washington, I). C.
Dear Sir: Replying to your letter of Nov. 4th, we are pleased to
advise that the steel required in Nth lloor of your building left our
Pittsburg works on the 50th ult. If it is not received by the 12th
instant, kindly wire us at our expense, and we will immediately put
wire tracer after the shipment.
Verv truly,
TRESSED CONCRETE STEEL CO.
Nov. 7, 1905.
Mr. James L. Karriek, 1555 (1 Street. N.
W., Washington, I). C.
Dear Sir: We ale anxious to learn whether Nth lloor steel has
been received vet; also whether you will go bevond this lloor this
fall, and if so. at about what date you will require the 9th lloor
steel.
Thanking vou in advance for this information, we remain
\ erv trulv vours,
« • •
TRESSED CONCRETE STEEL CO.
605 Karriek and Metcalf. Washington, I). C.
Nov. 9, 1905.
Trussed Concrete Steel Co., Detroit. Mich.
Gentlemen: In reply to your favor of Nov. 7th. The steel for
the Nth lloor has not yet arrived, neither has the shipment of Oct.
20th 4 steel bars for elevator. I have written the Pittsburg house
to start tracer. The 9th lloor steel should go forward not later than
two weeks from date of shipment of 8th, in other words ship the
9th floor steel not later than the 14th of November and the roof to
follow two weeks later. I have* arranged for canvas enclosure, to
use with salamanders to prevent concrete from freezing. I have ex¬
plained my plans to your Mr. Smith today and he has approved
them. I trust there will he no delay in these last shipments, as every
day makes the work more expensive and more difficult. I will send
vou check earlv next week for 6th floor steel.
% •
Yours trulv,
JAMES L. KARRICK.
606 Karriek and Metcalf. Washington, D. C.
November 9, 1905.
Trussed Concrete Steel Co., Pittsburg, Pa.
Gentlemen: I have not received shipment of Oct. 26th, four
bars. Please send tracer for that also for November 2nd shipment.
send steel proper length and we will know what to do with it.
TRUSSED CONCRETE STEEL COMPANY.
273
I have just written the Detroit office, in answer to their request for
information, to ship 9th floor steel not later than November 14th
and the roof steel two weeks later. I trust there will be no delay as
every day adds to the difficulty and expense.
Yours truly,
(Signed) JAMES L. KARRICK.
(Here follows diagram marked page 607.)
608 Detroit, Mich., Nov. 11, 1905.
Mr. James L. Karriek, 1335 G St., Washington, D. C.
Dear Sir: We regret to learn from your letter of the 9th that
steel for the eighth floor and also shipment of Oct. 6th have not yet
been received. We have asked Pittsburg to wire another tracer,
and assure you that we will lose no effort in tracing shipment
through to destination.
We thank you for instructions on the ninth floor and will be
governed accordingly.
Very truly yours,
TRUSSED CONCRETE STEEL COMPANY.
A. GREGORY.
609 Trussed Concrete Steel Co.
Pittsburg, Pa., Nov. 11, 1905.
Mr. James L. Karriek, G St., N. W., Washington, D. C.
Dear Sir: Answering yours of the 9th regarding four bars
shipped you by express, we beg to say that these bars are now in
Washington. We just received notice from the express agent at
Washington that these bars were billed to Jas. Karnes, and for
this reason they have not been able to locate you. However, we
have instructed them to correct this error and deliver immediately.
Very truly vours,
TRUSSED CONCRETE STEEL CO.
LOUIS KAHN.
W. R.
610 Nov. 13, 1905.
Mr. James L. Karriek, 1333 G Street, N. W., Washington, D. C.
Dear Sir: We have your favor of the 10th and note the change
in the length of the end panel in roof of Fidelity Storage Company
Warehouse.
We have therefore revised our order for steel for this panel and
the proper length bars; will be sent to you with the roof material.
Yours very truly,
TRUSSED CONCRETE STEEL CO.,
-, Engineer.
18—2057a
274
FIDELITY STORAGE CORPORATION ET AL. VS.
P. S.—With the increase of spun it will be necessary to space
the bars in this panel closer together. We propose that you space
these bars 10" on centers instead of 13", as originally called for.
We have ordered the proper number of bars accordingly.
611 Nov. 13, 1005.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, D. C.
Dear Sir: We take the liberty of reminding you that your ac¬
count of Sept. 30th for $1734.00 falls due tomorrow.
Thanking you in advance for your prompt attention to same we
are,
Very truly yours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
Nov. 18, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, D. C.
Dear Sir: Will you please advise us a< to the date of arrival
of our shipment of October 11. and oblige
Very truly vours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
612 Nov. 22, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, D. C.
Dear Sir: We beg to advise that steel for the 9th floor was shipped
on November 16th in P. R. R. car 6211. . Please advise us promptly
upon receipt.
Yours verv truly,
TRUSSED CONCRETE STEEL CO.
Nov. 25, 1905.
Mr. James L. Karrick. 1333 G Street, N. W., Washington, D. C.
Dear Sir: We find in our files a return postal from you, advis¬
ing us that our shipment of October 11th arrived on the 27th ult.
This account, therefore, becomes due Monday and we beg to remind
you of the same.
«/ _
Trusting that we may receive a check during the course of next
week, wo are,
Very truly,
TRUSSED CONCRETE STEEL CO.
613 Dec. 2, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, D. C.
Dear Sir: We beg to again remind you that your account for
the 7th floor material fell due last Monday. Please favor us with
your check covering same without further delay.
You will doubtless receive your 9th floor material very shortly
TRUSSED CONCRETE STEEL COMPANY.
276
and the writer understands that the steel for the roof has also gone
forward. This being the ease, we would ask you to kindly take
care of us promptly.
Very truly,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
Dec. 7th, 1905.
Mr. James L. Karrick, 1333 G Street, N. \\\, Washington, D. C.
Dear Sir: We are at loss to understand why we have not heard
from you in reply to our recent letters, reminding you of your ac¬
count of Oct. lltli. This account i> now ten days overdue and, in
view of the fact that all of your material has gone forward we must
insist upon your check without unnecessary delay. We shall ex¬
pect to hear from you by return mail. Please include your account
of Oct. 26th for $i5.36.
Very truly yours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
614 Karrick and Metcalf, Washington, D. C.
Dec. 8tii, 1905.
Trussed Concrete Steel Co., Detroit, Mich.
Gentlemen: Enclosed please find check for balance of enclosed
statement, which kindly receipt and return.
Balance unpaid. $1749.48
Less Freight. 56.62
Express paid on Oct. 26 shipment. 4.00
Blacksmith work on two floors. 8.00 68.62
Check to balance
Yours truly,
. $1680.86
JAMES L. KARRICK.
Dec. Utii, 1905.
Mr. James L. Karrick, 1333 G Street, Northwest, Washington, D. C.
Dear Sir: We beg to acknowledge receipt of your favor of the
8th inst., enclosing check for $1680.86, in payment of our invoices
of October 11 and 26, covering seventh floor material, less freight,
express and blacksmith charges.
Thanking you for your remittance, we are,
Very truly yours,
TRUSSED CONCRETE STEEL COMPANY.
Credit Dep’t.
FIDELITY STORAGE CORPORATION ET AL. VS.
276
615 Dec. 19th, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Wellington, D. C.
Dear Sir: \\ e beg to remind von of vour account of November 2
for £1643.88. which covers eighth door material. In accordance
with your advices, this account becomes due tomorrow.
Trusting that you will favor us as promptly as possible, we are
Verv truly vours,
TRUSSED CONCRETE STEEL CO.
Dec. *27, 1905.
Mr. James L. Karrick, 1333 G Street, N. W., Washington, I). C.
Dear Sir: Please let us have your check, covering your accounts
of November *2, during the current week without fail. This account
is now a week past due and we find ourselves greatly in need of
money, due to some extremely heavy obligations which we are obliged
to meet. Me presume this matter escaped your attention in the
l \ ru■ 1. tut ni l a»*k you to attend to same as promptly as
possible.
Very trulv vours,
TRUSSED CONCRETE STEEL CO.
Credit Dep’t.
616 Decree.
Filed May 27, 1909.
In the Supreme Court of the District of Columbia.
No. 26091. Equity Docket No. 58.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
This cause coming on to be heard upon the pleadings and evidence
under the original bill of complaint and upon the pleadings and
evidence under the cross-bill of the defendant James L. Karrick,
and having been argued by counsel for the respective parties and
submitted and considered, it is by the Court this 27th day of May
A. 1)., 1909 Adjudged, Ordered and Decreed
1. That the said cross-bill of the defendant James L. Karrick be
and the same is hereby dismissed.
2. That the original complainant, the Trussed Concrete Steel
Company recover from the defendant Fidelity Storage Corporation
and the Fidelity and Deposit Company of Maryland, its surety on
the undertaking executed by it and approved by the Court and filed
on the 18th day of July, 1906 to release the property of said Fidelity
Storage Corporation described in the original bill of complaint from
the operation of the mechanics’ lien filed by the said Trussed Con¬
crete Steel Company against it, the sum of forty-three hundred and
TRUSSED CONCRETE STEEL COMPANY.
277
nine dollars and fifty-live cent." ($4309.55) with interest on the
sum ot sixteen hundred and forty-three dollars and eighty-
017 eight cents ($1043.88) from December 20th, 1905, until
paid, and on the sum of sixteen hundred and forty-four dol¬
lars and thirty-six cents ($1044.30) from January 5, 1900, until
paid, and on the sum of ten hundred and twenty-one dollars and
thirty-one cents ($1021.31) from January 11, 1900, until paid,
together with the costs of these proceedings under both the aforesaid
original and cross-bills of complaint. And the said Trussed Con¬
crete Steel Company shall have execution therefor as at law.
JOB BARNARD,
Justice.
Order for Entering Appeal to Court of Appeals.
Filed June 14, 1909.
In the Supreme Court of the District of Columbia, the Fourteenth
Dav of June, 1909.
Equity. No. 20091.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
The Clerk of said Court will enter an appeal to the Court of
Appeals from the decree entered herein on the 27th day of May,
1909, by the defendants Fidelity Storage Corporation, James L.
Karrick, and the Fidelity & Deposit Co. of Md. the surety on the
undertaking heretofore filed; and will issue a citation against the
complainant Trussed Concrete Steel Co.
ALAN O. CLEPHANE,
Solicitor for Fidelity Storage Corporation
and Fidelity and Deposit Co. of Md.
WALTER C. CLEPHANE,
Solicitor for James L. Karrick.
618 In the Supreme Court of the District of Columbia.
No. 26091. In Equity.
Trussed Concrete Steel Co.
vs.
Fidelity Storage Corporation et al.
The President of the United States to Trussed Concrete Steel Com¬
pany, Greeting:
You are hereby cited and admonished to be and appear at a Court
of Appeals of the District of Columbia, upon the docketing the cause
278
FIDELITY STORAGE CORPORATION ET AL. VS.
therein, under and a* directed by the Rules of said Court, pursuant
to an Appeal noted in the Supreme Court of the District of Columbia,
on the 14th day of June, 1909, wherein Fidelity Storage Corpora¬
tion, James L. Karrick and the Fidelity <fc Deposit Company of
Maryland are Appellants, and you are Appellee, to show cause, if
any there he. why the Decree—rendered against the said Appellants,
should not he corrected and why speedy justice should not be done
to the parties in that behalf.
Witness the Honorable Harry M. Clabaugh, Chief Justice of the
Supreme Court of the District of Columbia, this 14th day of June
in the year of our Lord one thousand nine hundred and nine.
[Seal Supreme Court of the District of Columbia.]
J. R. YOUNG, CVk,
Bv F. E. CUNNINGHAM,
Assh Clerk.
Service of the above Citation accepted this 15th day of June,
1909.
RALSTON, SIDDONS A RICHARDSON, ,
Attorneys for Appellee.
[Endorsed:] No. 20091. Equity. Trussed Concrete Steel Co. vs.
Fidelity Storage Corporation. Citation. Issued June 14, 1909.
Served cop- of the within Citation on-, Marshal. -
-. Attorney for Appellant-.
619 Stipulation as to Omitting Plans from Record on Appeal.
Filed June 15, 1909.
In the Supreme Court of the District of Columbia.
#26091. In Equity.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
It is hereby stipulated and agreed by and between counsel for
appellants and appellee# respectively that the plans which wero
offered in evidence in the above entitled cause need not be included
in the transcript of record for the Court of Appeals, but that they
may be exhibited to the Court of Appeals upon the argument in that
Court if desired by either party.
It is further stipulated and agreed that two of said plans, to wit,
Exhibit A. II. G. No. 10 labeled “Footing Plans” and Exhibit
A. H. G. N<». 12 labeled “Working Details for Floors.” had placed
upon their backs the following, imprinted thereupon with a rubber
stamp, to wit :
TRUSSED CONCRETE STEEL COMPANY.
279
“Instructions to Foreman.
Concrete must be composed of the best grades of Portland cement,
and sharp, clean sand and broken stone or gravel in the proportions
of 1: 2 Vi: 5 for floor slabs, and 1: 2: 4 for beams. Broken stone or
gravel to pass a %" ring.
Bars to be placed at least from the bottom of slabs and
620 1" from bottomsof beams. The concrete must be properly pro¬
portioned, thoroughly mixed and well rammed into place.
Centering not to be removed in less than three weeks.
Neglect on part of foreman to observe any of above instructions
will be sufficient cause for immediate dismissal.
TRUSSED CONCRETE STEEL CO.”
WALTER C. CLEPHANE,
ALAN 0. CLEPHANE,
Solicitors for Appellants.
RALSTON, SIDDONS and RICHARDSON,
Solicitors for Appellee.
Directions to Clerk for Preparation of Transcript of Record.
Filed June 15, 1909.
In the Supreme Court of the District of Columbia.
No. 26091. In Equity.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
To the Clerk of the Supreme Court of the District of Columbia:
The appellants, Fidelity Storage Corporation, James L. Karrick
and Fidelity & Deposit Company of Maryland, hereby desig-
621 nate the parts of the record whicn they desire to be included
in the transcript on appeal as sufficient for the determina¬
tion of the questions to be presented thereupon.
1. The original bill of complaint with complainant’s exhibits 1
and 2 attached thereto.
2. Answer of the Fidelity Storage Corporation thereto.
3. Answer of James L. Karrick thereto.
4. Petition for leave to file cross-bill.
5. Order of court permitting cross-bill to be filed.
6. Cross-bill.
7. Answer of Trussed Concrete Steel Company to cross-bill.
8. Answer of Fidelity Storage Corporation to cross-bill.
9. Amendments to cross-bill.
10. Answer of Trussed Concrete Steel Company to amended cross¬
bill.
11. Answer of Fidelity Storage Corporation to amended cross¬
bill.
12. Amendment of original bill.
13. Testimony taken before and filed by Examiner.
280
FIDELITY STORAGE CORPORATION ET AL. VS.
14. Stipulation of counsel as to plans filed June loth, 1909.
15. So much of Exhibit A. II. G. 10 A (being the minute book
of the Fidelity Storage Corporation) as is comprehended within
pages 1-19 both inclusive, ending with the minutes of the Board of
Directors of April 30, 1900.
622 10. Exhibit J. L. K. No. 1, being the contract between de¬
fendant Karrick and the Fidelity Storage Corporation dated
Mav 3. 1905.
17. So much of Exhibit J. I.. K. No. 2 as contains the certificate
of the Weather Bureau and the records of temperature during the
months of October, November and December, 1905. and January
1906.
18. Exhibit J. E. K. No. 1 A, being the specifications accompany¬
ing said contract.
19. So much of the copies of letters offered in evidence as are
copied on the following pages, of the volume containing the copies
of letters, which was filed by the Examiner, to wit: 5, 6, 10, 24, 26,
27, 29, 30, both inclusive, 31 (being letter, not telegram, dated July
28. 190.)), 32-36 both inclusive, 39-41 both inclusive, the telegram
and its answer contained on page 171 of the testimony filed by tho
defendant to the original bill. 42-46 both inclusive, letter of October
14. 190o on page 47. page 49. page 50, letter of November 4th on
page 51, letter of November 9. on page 52, page- 53, 55, letter of
December 8 on page 00, letter of December 19 on page 61 and page
62.
20. Final Decree.
WALTER C. CLEPHANE,
ALAN O. CLEPHANE,
Solicitors for Appellants.
Memorandum.
June is. 1909. —Appeal bond in the sum of Eight Thousand Dol¬
lars (.88.000) approved and filed.
023 Additional Designation for Printing Record.
Filed June 19, 1909
In the Supreme Court of the District of Columbia.
No. 26091, Equity Docket —.
Trussed Concrete Steel Company
vs.
Fidelity Storage Corporation et al.
To the Clerk of the Supreme Court of the District of Columbia :
The appellee Trussed Concrete Steel Company, hereby designates
the parts of the record which it desires to be included in the transcript
on appeal m addition to those designated bv the appellants:
1. Ct nnplainant’s replication to answers to the original Bill of
Complaint, filed July 12, 1906.
TRUSSED CONCRETE STEEL COMPANY.
281
2. Replication of James L. Ivarrick to the answers of the Trussed
Concreto Steel Company and the Fidelity Storage Corporation to
cross-bill, filed August 2, 190(5.
3. Replication to answers to amend cross-bill filed March 23, 1908.
4. So much of exhibit AUG 10 A (being the minute book of the
Fidelity Storage Corporation) as is comprehended within pages 20
to 22, both inclusive, ending with the minutes of the stockholders'
meeting of August 15, 1907.
5. JSo much of the letters, or copies of letters, offered in evidence
as are copied on the following pages, of the volume containing said
copies, liled by the examiner as part of the testimony in thi§
624 case, to wit: pages 2 to 4, both inclusive, 7 and 9. Letter of
Complainant Company to James L. Karrick, dated June 12,
1905, on page 12; letter of Complainant Company to said Karrick,
dated June 19, 1905, on page 15, pages 20 to 23, both inclusive; 25,
28,38,47, 48 and the unnumbered page following 48 which should be
numbered 48^, pages 51, 52 and 54, and pages 56 to 61, both in¬
clusive.
RALSTON, SIDDONS and RICHARDSON,
Solicitors for Trussed Concrete Steel Company, Appellee.
Memorandum.
August 3, 1909.—Time in which to file Transcript of Record in
Court of Appeals extended to, and including, September 1st, 1909.
625 Supreme Court of the District of Columbia.
United States of America,
District of Columbia, ss:
I, John R. Young, Clerk of the Supreme Court of the District of
Columbia, do hereby certify the foregoing pages, numbered from 1
to 624, both inclusive, to be a true and correct transcript of the record,
according to directions of counsel herein filed, copies of which are
made part of this transcript, in cause No. 26,091, Equity, wherein
Trussed Concrete Steel Company, a corporation, is Complainant, and
Fidelity Storage Corporation, a corporation, et al, are Defendants, in
the Original Rill; and James L. Karrick, is Complainant and Trussed
Concrete Steel Company, a corporation, et al, are Defendants in the
Cross-Bill, as the same remains upon the files and of record in said
Court.
In testimony wlieref, I hereunto subscribe my name and affix
the seal of said Court, at the city of Washington, in said District,
this 27th day of August, A. D., 1909.
[Seal Supreme Court of the District of Columbia.]
J. R. YOUNG, Clerk,
By ALF. G. BUHRMAN,
Assft CVk.
Endorsed on cover: District of Columbia supreme court. No.
2057. Fidelity Storage Corporation et al, appellants, vs. Trussed
Concrete Steel Company. Court of Appeals, District of Columbia.
Filed Aug. 27, 1909. Henry W. Hodges, Clerk.
or THE DISTRICT OF COLUMBIA
October Term, 1909
FIDELITY STORAGE CORPORATION, JAMES L
KARRICK, AND FIDELITY AND DEPOSIT COM¬
PANY OF MARYLAND, APPELLANTS,
TRUSSED CONCRETE STEEL COMPANY, APPELLEE
WALTER C. CLEPHANE,
Solicitor for Appellant Karrich-.
ALAN O. CLEPHANE,
Solicitor for Other Appellants.
3ln thp (Enurt of Appeals
OF THE DISTRICT OF COLUMBIA.
October Term, 1909.
No. 2057.
FIDELITY STORAGE CORPORATION, JAMES L.
KARRICK, AND FIDELITY AND DEPOSIT COM¬
PANY OF MARYLAND, APPELLANTS,
vs.
TRUSSED CONCRETE STEEL COMPANY, APPELLEE.
BRIEF FOR APPELLANTS.
Statement of Facts.
This is an appeal from a decree (Rec., p. 276) passed
by the Supreme Court of the District of Columbia in a
mechanic’s lien suit filed by the appellee (Rec., p. 2),
which was a material man furnishing steel for the erec¬
tion of the warehouse of the appellant Fidelity Storage
Corporation under a contract with the appellant Kar-
rick (Rec., pp. 6 and 7).
During the progress of the suit below an undertaking
was given by the appellant Storage Corporation, with
the appellant Surety Company as surety, under the pro¬
visions of section 1254 of the District Code, to release
1568—1
2
the property involved from the operation of the lien
(Ree., p. 276).
The decree awarded to the appellee against the
Storage Company and its surety substantially the
amount claimed in the bill of complaint, and dismissed
the cross-bill tiled by the appellant Karrick to recover
damages against the appellee for delay in the delivery
of the steel contracted for (Rec., pp. 276, 277).
The appellant Karrick was made a party defendant to
the original bill (Rec., p. 2) under section 1246 of the
I). C. Code, which provides that if the “suit be brought
by any person entitled, other than the principal con¬
tractor the latter shall be made a party defendant.”
Under section 1258 of the D. C. Code it is provided that
in any such suit, if the proceeds of the property shall be
insufficient to satisfy the lien, a personal judgment for
the deficiency may be given in favor of the lienor against
the original contractor.
In view of the fact that the record shows that at the
time of filing the original bill there was still due the
appellant Karrick bv the appellant Storage Company
more than the amount claimed by appellee, it is obvious
that the amount of the appellee’s recovery against the
appellant Storage Corporation (the owner of the building)
would be precisely as much as and no more than is due
to the appellee by the appellant Karrick, who was the
principal contractor and with whom appellee made its
contract. In order to determine the sum for which a
decree should be given therefore, it was necessary for
the court to ascertain exactly what was due by the ap¬
pellant Karrick to the appellee. As to this amount
there was substantially no dispute except for the cross
demand set up in the cross-bill of the appellant Karrick,
the amount of which exceeded appellee’s claim (Rec., pp.
50, 17, 24).
3
History of the Case.
In February of 1905, the appellee, through its general
manager Layton F. Smith (Rec., pp. 47, 48, 61,195) sub¬
mitted to appellant Karrick the following proposition
(Rec., p. 6):
“We will deliver F. O. B. cars Washington the
necessary Kahn sheared bars required in the con¬
struction of the eight lofts and roof and footings
as well as lintels over Ist-story openings in front
and one in side walls of the Karrick Warehouse,
sixty feet (60'-0") by two hundred feet (200',-0"),
supported on two division walls twenty feet
(20' 0") on centers, the beams being seven feet
(7'-()")on centers, the Hoors designed for two hun¬
dred pounds (200) per sq. ft. live load, the roof
for forty pounds (40) per sq. ft. live load, for the
sum of 815,500.00 the steel will be delivered as
desired F. O . B. cars Washington* payments to
be made for each shipment thirty (30) days net
cash after arrival of material at Washington. We
will also furnish free of charge general supervision
and all drawings necessary to show construction.
We will also furnish a working foreman to be in
your employ, who will be under our instructions
capable of constructing the reinforced concrete
work.Provided you will use proper materials the
construction which we design will be capable of
sustaining the test loads required by the Inspector
of Buildings namely three (3) times the live and
one (l)time the dead load in addition to its own
weight. Should the footing reinforcement be eli¬
minated, please deduct 8500.00
(Signed) Trussed Concrete Steel Co.,
Layton F. Smith, Mgr.
2-15-05 , Balto. f Md.
To James L. Karrick, Washington, D. C.”
The proposition was accepted by appellant Karrick
* Italics are ours.
4
or) February 15, 1005, and the contract thus concluded
(Rec., p. 7).
Right here it might be opportune to remark that the
cross-bill was dismissed by the learned trial justice
simply upon the ground that the words “as desired”
(Rec., p. 6) in the above contract were too indefinite to
form the basis of any claim for damages for delay in the
delivery of material beyond the date which Karrick
indicated as the desired date of delivery.*
Appellant Karrick was instrumental in securing the
organization of a corporation, under the laws of the
State of Virginia, by the name of Fidelity Storage Cor¬
poration (one of the appellants here) (Rec.,pp. 141, 242,
247), to which corporation Karrick conveyed the real
estate upon which the storage building was thereafter
erected (Rec., p. 3). Of this corporation Mr. Justice
Brewer was president (Rec., pp. 141,242), Mrs. Henrietta
B. Karrick (the wife of appellant Karrick) was secretary
(Rec., p. 242), and the appellant Karrick was treasurer
(Rec., pp. 57, 242). At a meeting of the board of direct¬
ors held May 3, 1005, the contract hereinafter set forth
was authorized, and on the same day drafted and sub¬
mitted to Mr. Karrick by the secretary in the shape of a
proposition from the company to him, which proposition
was accepted on the same day, and is in the words and
figures following (Rec., pp. 57, 58, 133, 245, 178, 257,
248, 135, 136, 142):
“Washington, D. C., May 3rd , 1905.
“Acting under power vested in me this day by
the directors of The Fidelity Storage Corporation,
I hereby authorize James L. Karrick to erect a
storage warehouse on our lot number 18, square
205, according to plans and specifications, pre¬
pared by Beecher, Friz and Gregg, architects, for
which we agree to pay him the sum of one hun¬
dred and fifty-five thousand dollars ($155,000).
5
The said warehouse to be completed and posses¬
sion given us on or before November loth, 1905.
A penaltv of $25.00 per dav will be exacted for
* Aside from the question raised by the defendants to
the original bill, that plaintiff’s notice of mechanic’s lien
was insufficient, the proper construction of the words
“as desired F. 0. B. cars Washington,” constitutes the
important question of law raised in this case. If these
words mean anything at all , the decree below must be
reversed.
There is no evidence in the case to indicate that the
appellee knew that Karrick was subjected to a penalty
of $25 a day for each day’s delay in the completion of
the building after November 15, except Karrick’s testi¬
mony to the effect that he thought Layton F. Smith, the
Steel Company’s manager, was told of this (Rec., p. 154).
Mr. Smith, on the contrary, says that he did not know
it (Rec., p. 206).
The parties to the suit have stipulated (Rec., pp. 54,
55) that the first shipment of steel was received by Kar¬
rick on May 24, 1905; that the material for the second
and third floors was received by Karrick on June 7, 1905,
it having been shipped by the Steel Company on May 29,
1905; that the third shipment, consisting of material for
elevator opening was received by Karrick prior to June
21, 1905, having been shipped by the Steel Company on
June 6, 1905; the fourth shipment, consisting of stair
steel was received by Karrick a day or two before July
10, 1905; Karrick ordered the material for the fourth floor
on July 26, 1905, and the material for the fifth floor
on August 5, 1905, as per his letters offered in evidence,
6
the material for these two floors was shipped bv the
steel company to Karrick on August 15, 1905, and was
received by him on August 23, 1905. The material for
the sixth floor was ordered by Karrick on August 28,
1905, for delivery on September 28, 1905; it was received
by him on October 14, 1905. Karrick ordered the material
for the seventh floor by letter dated September 15, 1905,
to be delivered by October 12, 1905. He received the
material for the seventh floor on October 27, 1905.
Karrick ordered under date of October 2G, 1905, four
bars of steel from the steel company to be sent to him
by express, and he received the same on or about the
11th day of November, 1905. Karrick ordered the mate¬
rial for the eighth floor of the said building on October
25, 1905, for delivery by November 12, 1905, and he re¬
ceived the same on November 20, 1905. Karrick ordered
the material for the ninth floor shipped not later than
November 14, 1905, and he unloaded the same from the
cars of the railroad company in Washington on December
6, 1905; Karrick on November 9,1905, ordered the tenth
and last material for the roof of said building, to be
shipped by the Steel Company by November 28, 1905,
and he unloaded the same from the railroad cars in
Washington December 12, 1905.
The record shows that Karrick, when he entered into
his contract with the Steel Company, supposed that the
steel was carried in stock and did not know that it would
have to be manufactured on purpose for his building
(Rec., pp. 163, 167); although the Steel Company was
aware that the steel would have to be specially prepared
and that Karrick could not obtain it elsewhere.
It will be noted from the above dates, which are
stipulated by the parties to be correct (Rec., pp. 54,55),
that considerable delay occurred in the delivery of the
steel. The correspondence offered in evidence shows that
7
numorous complaints were made by Karrick regarding
the delay and that the steel company was repeatedly
warned by him that disastrous consequences would
ensue on this account, particularly when the freezing
weather set in (Rec., pp. 267, 269, 271, 272,273). Under
date of May 18, 1905, Karrick wrote the Steel Company
that he would want the material for the second floor in¬
side of two weeks (Rec., p. 258), to which the Steel Com¬
pany responded that they thought the material would
reach him in due time for his work (Rec., p. 258), and no
suggestion was made that it would not be delivered
within that time. It was not until July 21st that any inti¬
mation was conveyed to Karrick by the Steel Company
that more than two weeks’ notice would be required in or¬
der to insure the delivery of steel at the time desired. The
Steel Company then wrote Karrick (Rec., p. 261) that “the
condition of the steel market is such that we can not
guarantee shipment under four weeks from the time the
order is placed;” and notwithstanding the fact that
their contract required them to deliver the steel in
Washington as desired by Mr. Karrick, in this letter
they assumed a very independent attitude and stated
that unless Karrick was willing that they should ship
the material as they desired, Karrick would have to run
the risk of having his work held up, as, if the Steel Com¬
pany was to await his orders for each shipment, his work
would be “sidetracked and have to take its regular term
like any other new order.” At no time was any excuse
made by the Steel Company for delay, except that their
works were swamped with orders (Rec., p. 268), or that
they had themselves billed the goods wrong (Rec., p.
273). To quote from the Steel Company’s letter to Mr.
Karrick dated October 2, 1905 (Rec., p. 268), in apologiz¬
ing for delay, they say: “Our Pittsburg works are so
swamped with orders that it has been impossible for us
8
to turn out this material at an earlier date,” an argu¬
ment to the effect that because the Steel Company was
making so much money, it was therefore justified in
forcing a loss upon its customers.
The subsequent correspondence between the parties
shows that Karrick endeavored, whenever possible, to
give the Steel Company four weeks’ notice (Rec., pp. 261-
273), although when Karrick only gave three weeks’
notice on July 26 (Rec., p. 262) the steel was promised
by the Steel Company in that time (Rec., p. 264).
Had Karrick completed his building by November
15th, in accordance with his contract with the Storage
Corporation, the records of the weather bureau offered
in evidence, show that he would not have been troubled
with freezing weather. The freezing commenced in No¬
vember (Rec. pp. 59, 74, 86, 90, 189), however, and
delayed the completion of the work, so that the building
was not delivered to the Storage Corporation until Jan¬
uary 25th (Rec., pp. 58, 74, 86, 90, 91, 99, 137, 156-158,
178), a delay of 70 days. There is no evidence to indi¬
cate that this delay was due to any other cause than
the failure of the Steel Company to deliver its steel “as
desired’ (Rec., p. 59), which necessitated the building
operations being carried on at a loss during freezing
weather and the building to be damaged by the action
of the frost (Rec., pp. 137, 13S, 60, 69-71, 75, 76, 86, 87,
89, 90, 101, 102, 108, 112-115, 122, 126-131, 124-126,
172, 113, 118, 119).
The damages caused by this delay are set forth in
Karrick’s cross-bill. In setting them forth here counsel
have eliminated certain items of the cross-bill which
were admitted by the Steel Company to be correct (Rec.,
p. 50) and in settling the decree were deducted from the
amount of the Steel Company’s demand as set forth in
its original bill. The items are as follows (Rec., pp. 17,
24):
9
Items of Cross Demand.
1. Delay Nov. 15 to Jan. 25, 70days;
loss under contract with Fidelity
Storage Corporation,$25 per day. . $1,750 00
2. Use of hoisting and concrete plant
70 days at $9 per day. 630 00
3. Watchman 70 days at $1.50. 105 00
4. Coal for heating. 35 00
5. Stoves, canvas and straw to pre¬
vent concrete freezing. 52 60
6. Extra forms to hasten work to
prevent further delay. 1,350 00
7. Addition of 25% to cost of con¬
crete labor, $1,442. 360 00
8. Foreman of concrete, 70 days. . . . 280 00
9. Complainant Karrick’s time, 70
days at $5 per day. 350 00
10. Foreman of carpenters of $3.00
for 70 days. 105 00
11. Deterioration in signs on the east
and west walls of building due to
freezing of mortar joints. 75 00
12. Stucco damaged by freezing. 75 00
13. Estimated cost of raking out joints
and filling up same on east and
west walls, 20 feet by 400 feet,
8,000 square feet, also strip one
foot wide and 200 feet long on
east and west walls on two floors,
200 feet; total of 8,800 square
feet, at 10 cents per foot. 880 00
14. Cutting out and resurfacing a part
of eighth floor, damaged by freez¬
ing, 60 by 100 feet, 6,000 feet;
also ninth floor, 60 by 150 feet,
9,000 feet; at 60 cents per yard
for new work and 10 cents per yard
for picking up old surface; that
is, 70 cents per yard for 1,666
yards, amounting to. 1,166 20
Making a total of. $7,213 80
10
The building in question is numbered 1420 U street,
n. w., being situated on the south side of U street (Kec.,
p. 30). It is 60 feet wide from the exterior of the out¬
side walls, running back a depth of 200 feet (Rec., pp.
74, 197), is nine stories high (Rec., pp. 39, 55, 175, 272)
and is divided longitudinally into three sections each
20 feet w r ide, the divisions being caused by inside
walls which run back the entire depth of the building
except on the top floor, where they only run back about
half way. Each floor was thus divided into three sec¬
tions (Rec., pp. 150, 173, 197).
The building is constructed by the use of the Kahn
system of reinforcement (Ilec., p. 30). The walls are of
brick, but the floors are of concrete in which steel bars
are embedded. While in process of hardening, the con¬
crete which incases these steel bars must be supported
in beam boxes made of lumber, which must be braced at
frequent intervals by other lumber, and these boxes and
braces must remain in position until the concrete be¬
comes absolutely hard and capable of supporting the
weight imposed upon it. The lumber used for these
beam boxes and this bracing is called “forms” or “cen¬
tering” (Rec., pp. 59, 60, 106, 153). It is obvious that
if the building is to proceed rapidly, the longer these
forms remain in place, the greater the number of forms
required, and rice versa (Rec., pp. 33, 94). One “set”
of forms means the necessary forms or centering for one
floor.
Two of the plans which were offered in evidence and
which were furnished by the Steel Company have
stamped upon their back this statement; “Centering not
to be removed in less than three weeks” (Rec., p. 279),
and the Steel Company’s manager and a so-called expert
called by it testified that there should have been three
sets of forms for this building; but this testimony con¬
templates the forms remaining in place three weeks, and
11
apparently contemplates the completion of one entire
floor before another is started (Rec., pp. 200, 227). This
building was not built in that way. On this building
the bricklayers started at the north end of the east sec¬
tion and laid the brick walls a story high for a distance
of 100 feet, or half the depth of the building. Then
the bricklayers and the scaffolds were removed to
the south end of that same section and the
same process repeated. As soon as they were
out of the north end the carpenters began to
erect the forms, then followed the bricklayers to the
south end of the next section. After the carpenters had
gotten up forty or fifty feet of forms the concrete and
steel men began putting in the steel and concrete on top
of these forms, and this process was repeated until the
building was completed. This was the most economical
method of construction and avoided the necessity of
laying off any of the men from time to time (Rec., p. 237).
Mr. Karrick testifies that the Steel Company’s super¬
intendent, Mr. Smith, told him at the start that two
complete sets of forms would be ample to complete the
building by the time specified in his contract with the
Fidelity Storage Corporation (llec., pp. 64,177), and there
were from one and one-half to two sets of forms at the
start (Rec., pp 88, 106, 144, 177, 197, 213). Up to the
sixth floor Mr. Smith notified Mr. Karrick when to take
the forms out (Rec., pp. 60, 145, 148, 200), and prior to
November the forms did not usually remain in place
more than two weeks, and they were frequently taken
out in ten (lays or less (Rec.,pp. 38, 59, 60, 145). The
only object of having the forms remain in place was to
be sure the concrete was thoroughly hard. When this
occurred, the forms could be removed with perfect
safety. When freezing weather set in, however, it took
the concrete longer to set or harden, requiring that the
forms should remain longer in place (Rec., pp. 59, 60, 83,
145, 212, 225, 227), and thus necessitating the construc¬
tion of an extra half set of forms, which would not have
been necessary had the building been completed on time
(Rec., pp. 64, 77, 84, 88, 94, 106). it is the cost of this
extra half set of forms which constitutes a considerable
item in Karrick’s cross-bill (liec., p. 17).
In order to attempt to avoid the effects of freezing, it
was necessary that fires should be built under the work
in process of construction and kept going all night, and
that the work should be further protected by canvas
and straw. These precautions were taken, and every
afternoon from early in November until the 25th of
January, whether the weather was actually freezing or
not, if a freeze was threatened , it was necessary for the
men to quit construction work from 2.50 to 4 o’clock to
do this precautionary work, and in the morning it took
from an hour to two hours to uncover the work again,
so that construction could commence, entailing upon
Karrick a pecuniary loss of the expense of his workmen
for at least one-fourth of the time during that period
(Rec., pp. 61, 62, 67, 75, 87, 107).
Notwithstanding all these precautions, some of the
mortar lroze, which will necessitate raking out the joints in
portions of the walls and filling them up again with mortar
(Rec., pp. 69, 70, 158, 172, 75, 76, 86, 89, 108, 112, 115,
115, 118, 119, 126); the topping to the concrete froze,
which wdl require tearing off the old surface and relay¬
ing the same (Rec., pp. 60, 70, 75, 76, 86, 90, 101, 102,
108, 112, 115, 122), and parts of the stucco on the front
of the building froze (Rec., pp. 71, 76, 89, 157). Owing
also to the freezing of the mortar in the joints, which
did not manifest itself until long afterwards, the large
signs which were painted upon the walls were badly in¬
jured (Rec., pp. 69,76, 86, 87, 89, 108,114, 115, 124-131).
All of these items of injury are matters for which Mr.
13
Karrick was responsible to the Storage Corporation, and
for which, under his contract with that company, he was
liable (Rec., pp. 157, 178, 24S).
Without considering the testimony in support of these
items of damage, the trial justice dismissed the cross-bill
upon the sole ground above stated, to wit, that the
words “as desired” in Karrick’s contract with the Steel
Company were meaningless, in so far as they authorized
any claim on his part against the Steel Company for
damages for delay in the delivery of the material con¬
tracted for beyond the timp specified by him.
Before considering more in detail the testimony in the
case and the law applicable to the facts developed, it
should be stated that the following propositions of law
raised in the court below should first be disposed of.
I.
Was the Notice of Mechanic’s Lien in Compliance with the
Statute ?
II.
Did Karrick Have a Right to file a Cross-Bill ?
I.
Was the Notice of Mechanic's Lien in Compliance icith
the Statute?
The appellants in their answers to the original bill
made the point which they strenuously insisted upon at
the hearing (Rec., p. 51) that the appellee has not com¬
plied with section 123S of the Code of the District of
Columbia in filing its notice of mechanic’s lien. This
section provides that the lienor shall file in the office of
the clerk of the Supreme Court of the District a notice
of his intention to file a lien, “specifically setting forth
14
the amount claimed, the name of the party against whose
interest a lien is claimed . and a description of the prop¬
erty to be charged.”
Three essential averments are required:
1. The amount claimed.
2. The name of the party against whose interest a lien
is claimed.
3. A description of the property to be charged.
Appellants' notice of lien entirely omits the second
essential averment, to wit: “The name of the party
against whose interest a lien is claimed” (Rec., p. 7).
Section 1238 of the Code except as to the requirement
of the name of the party against whose interest a lien is
claimed, is substantially the same as section 2 of the Act
of July 2, 1884 (23 Stat., 64), which required the notice
of lien simply to set forth a description of the property
and the amount claimed.
It is to be presumed therefore, that when a third
essential averment was required by the statute it was
intended that the statute should be complied with, and
that the courts will so hold. Yet it is noticeable that
the lienor in this case followed not the Code, but the
act of 1S84 in preparing its notice.
It is true that the caption prefixed to the notice (Rec.,
p. 7), reads as follows: ‘‘Trussed Concrete Steel Company,
claimant, a corporation, rs. Fidelity Storage Corporation,
owner, a corporation;” but that is because in the printed
blank furnished by the clerk the word “owner” appears
in print, indicating that the name of whoever may be the
owner of the property shall be filled in in the caption. The
Code, however, provides (section 1237) that a lien may
be filed against the interest of a person having a less
estate in the property than the owner, or a lessee for a
term of years, or a vendee in possession under a contract
of sale. The notice of lien in this case states that the
amount claimed is due for labor and materials furnished
15
“under and by virtue of a contract with James L. Kar-
rick ” (Rec., p. 7). For all that the notice of lien shows,
it might be that Karrick was “the party against whose
interest a lien is claimed.”
Certainly one of the three required averments is ut¬
terly lacking in this notice.
It might be very true that the Storage Corporation is
the owner of the building, and that the goods were fur¬
nished undera contract with Karrick, all of which would
naturally appear in the printed blank furnished, even if
the lienor intended to hold the interest, not of the
owner, but of a lessee. It was in order to require him
to show distinctly whose interest he sought to affect
that the statute commands him to state it.
It has been repeatedly held that the caption of a
pleading is no portion of a pleading.
Jackson vs. Ashton, 8 Pet,., 14S.
Spalding vs. Dodge, 6 Mack., 289.
Bank of Columbia vs. Ott. 2 Cr. C. C., 529.
In the case of Phoenix Iron Co. vs. The Richmond, 6
Mack., 180, the court held that the caption might be en¬
tirely disregarded, and that—
“the notice of intention to hold a lien is required
rather in the interest of third persons than of the
owner of the property, to the end that subse¬
quent purchasers or incumbrancers resorting to
the record for information as to the state of the
title in this particular, may there be made aware
of the existence, amount and character of all de¬
mands against the property, in the form of me¬
chanics’ liens; and if the notice so filed furnishes
all the information requisite to disclose these
points of inquiry, the purpose of the law has
been gratified, although there may be no formal
caption attached, or although the caption may
not be in all particulars critically correct.”
16
When the Code, however, was promulgated, which pro¬
vided for a sale of the interests of persons other than
the owner, Congress evidently thought that something
more was required than was considered necessary by the
court at the time the case of Phoenix Iron Co. vs. The
Richmond, supra, was under consideration, and required
the lienor to state the name of the party against whose
interest he claimed the lien.
The Supreme Court of the District of Columbia in
general term, therefore, when revising its rules of prac¬
tice (the tirst revision since the adoption of the Code),
evidently regarded the form of notice of lien given by
appellee in this case as not complying with the statute,
and provided a form (Law Rule 69) as follows:
“lx the Supreme Court of the District of Co¬
lumbia.
Filed and recorded -, 190-, at -o’clock
— M.
-, claimant, J XT
’ l No.-.
i Notice of Lien.
-, owner. )
“Notice is hereby given that-intend to
hold a mechanic’s lien against the interest of-,
in -, situate in the city of -, (county
of) Washington, in the District of Columbia, and
the building- thereon, for the sum of -dol-
lars($-),with interest from-, 190—, being
amount due to-for labor upon and ma¬
terials (-) furnished for the construction
(repair) of said building- under and by virtue of
a contract with-.
- -, Claimant,
By-”
It will be noticed that in the above form the criticism
which counsel makes about appellee’s notice has been
rfiet and remedied, and the rule requires that the notice
17
shall show that the lien is claimed “against the interest
of -,” which makes the form of notice required
under the rule differ in that respect from that given by
appellee in this case.
“It is a very common requirement that the
statement of claim shall give the name, if known,
of the owner or reputed owner of the premises on
which the lien is claimed, and compliance with
such requirement is essential to the existence of
the lien.”
90 Am Sr F.ntr Fnr» v of Law (9c\ Fd ^ 499
“A mechanic’s lien has no existence outside the
statute creating it. . . . While the statute
creating such a lien is to be reasonably construed
so as to effectuate, if possible, the legislative
intent, we are not at liberty to excuse those who
would claim its protection from the performance
of precedent conditions. As was said by Mr.
Justice Field in Davis vs. Alvord, ( J4 U. S., 549:
‘Whilst the statute giving liens to mechanics and
laborers for their work and labor is to be liberally
construed, so as to afford them the security
intended, it can not be too strongly impressed
upon them, that they must not only bring them¬
selves by their notices , . . . clearly within
the provisions of the statute, but they must be
prepared, if the priority of their liens be disputed,
to show a compliance with those provisions.’”
Jas. B. Lambie Co. et al. vs. Bigelow et al.,
37 Wash. Law Reporter, 769.
Reindollar vs. Flickinger, 59 Md., 469.
McElwee vs. Sanford, 53 How. Pr., 89.
In the case of White et al. vs. Mullins et al., 2 Idaho,
1164, the statute provided that “every person claiming
1568-2
18
the benefit of this chapter must . . . file
a claim containing a statement of his demand, . .
with the name of the owner or reputed owner, if known/’
etc. A notice of lien was filed without stating the name of
the owner in the body thereof, but in the caption it was
stated to be tiled against “R. J. Bledsoe, contractor, and
B. J. Mullins, owner.”
The court said:
“Under a statute almost identical with that of
Idaho, the Sup. Ct. of Nevada in Walter vs. Min¬
ing Co., 2 Pac. Rep., 50, held that, while the statute
should be liberally construed, every material re-
quirement should be complied with, and that,
where a direct and unequivocal allegation of the
name of the owner is wanting in the notice of the
lien, such notice is radically defective, and no lien
can be founded thereon. It can hardly be claimed
that the descriptio persona' at the head of the
notice, to wit (Caption Copied) is a direct and
unequivocal allegation of the name of the owner.
. The demurrer of the defendants to the
complaint should have been sustained.”
II.
Did Karrick Have a Right to Fite a Cross-bill.
Counsel for appellee has denied the right to file a
cross-bill in a mechanic’s lien suit.
The record shows that a formal motion for leave to
file the cross-bill was filed (Rec., p. 12), accompanied by
a copy of the proposed cross-bill, and that after argu¬
ment a formal order was entered giving leave to file the
cross-bill (Rec., p. 14). The matter was elaborately argued
at that time as it was subsequently argued at the hear¬
ing of the case.
The right to file the cross-bill is contested by the ap¬
pellee upon the ground that a mechanic’s lien suit is a
19
case in rem and that it is a purely statutory proceeding,
and must be conducted strictly in accordance with the
statute, an argument which, if applied to the informality
found in the notice of lien filed here, must be fatal to
the appellee’s right to recover.
“Before going further into this subject it is
deemed proper to call attention to the fact that
while a general policy pervades all mechanic’s
lien statutes, great diversities of detail are found
in the various legislative systems, alike in the
scope of the lien, the conditions of its creation,
and the manner of its preservation and enforce¬
ment, and hence what will or will not uphold a
lien under one system of statutes is often a very
poor guide in controversies arising under other
legislation. Judicial precedent is serviceable in
furnishing canons of interpretation, and analogies
to aid and direct judicial inquiry, but when the
statutes are essentiallv different its assistance
extends no further.”
20 Ency. of Law (2nd Ed.), 268.
“A proceeding to foreclose a mechanic’s lien is
generally considered to be a proceeding in rem.
. . . But while it possesses many of the
features which characterize this proceeding, it is
not in technical strictness a proceeding in rem.
. . . It must be commenced against a defend¬
ant by name, and the judgment must be against
the defendant, and not against the land alone.
Suit must be brought against the party promis¬
ing. A proceeding merely in rem, regardless of
any personal defendant, will not suffice.”
13 Ency. of PI. & Pr., pp. 945, 946, and cases
cited.
While a mechanic’s lien proceeding may be one in rem
against the owner of the property, and the decree as to
him limited to one for the sale of the property involved,
20
without exposing the owner to any personal liability,
this is not so as regards the contractor in those jurisdic¬
tions where a personal judgment may be taken against
the contractor. This distinction is well drawn in the
case of Washburn vs. Burns, 34 X. J. L., IS, the court
indicating this distinction on page 22 of its opinion
where it says that ‘"so far as the owner is concerned the
proceeding is in rem."
The distinction is fully explained in the case of Grogan
vs. Raphael, 6 Abb. Pr., 306, annotation from which will
be found infra.
13 Knew PI. & Pr. at page 009, seems to lay down the
doctrine that a cross-bill can not be maintained bv the
*
owner for damages caused by delay in the work, the
reason given being that—
“a mechanic or material man who has performed
labor or furnished material under a contract with
the principal contractor or subcontractor is not
entitled to a personal judgment against the
owner."
13 Knew PI. k Pr., 1035.
In support of this doctrine on page 999 there are but
three cases cited. These three cases will be now dis¬
cussed.
In the case of McCarthy vs. New, 93 Ill., 455, the rea¬
son given was that proceedings to establish a mechanic’s
lien are against the property to be affected.
The case of Ellison vs. Salem Coal Company, 43 Ill.
App., 120, was one in which certain defendants filed a
cross-bill against the principal defendant asking that a
certain chattel mortgage might be foreclosed in a me¬
chanic’s lien suit. Instead of holding that a cross-bill
could not be maintained, the court held that the cross¬
bill was properly filed; and the citation given in the
21
encyclopedia is therefore an authority for the reverse of
the proposition there laid down.
The third case cited and cited several times as au¬
thority for this proposition, was brought in the District
of Columbia, and is the one upon which the original com¬
plainant in this case strongly relies. That is the case of
Brown vs. Boker, 20 D. C.,99. The report of the opinion
in that case has very little to say about the cross-bill, and
nothing is indicated as a reason why the cross-bill was
not considered. An examination of the original papers
in the case on file in the clerk’s office, No. 10,986 Equity,
shows that there is absolutely no warrant for the re¬
porter’s headnote to the effect that “a cross-bill to
recover damages for defective work can not be filed in a
suit to enforce a mechanic’s lien, but the court may re¬
serve to the defendant the right to proceed at law.” The
only mention made with regard to the cross-bill is in the
following language:
“But in the course of the pleadings Mrs. Boker
filed a cross-bill in which she averred these irregu¬
larities and imperfections in the work, insisted
she had been much injured by them, and claimed
the right to recover damages in that action
against the complainants. The cross-bill was de¬
murred to and the demurrer sustained, with leave
to Mrs. Boker to institute an action at law to re¬
cover any such damages.
“In affirming the judgment, we think there is
enough in the case to render it proper to make a
similar reservation. We will amend the decree
below r by expressly reserving the right to Mrs.
Boker to bring an action at law T within a short
time, if she sees fit to do so; but as a considerable
interval has elapsed since the inception of this
transaction, and the Statute of Limitations might
otherwise apply to the defendant’s claim, we will
decree that if this suit is brought within three
months the Statute of Limitations shall not be
pleaded to the action by the complainants.”
22
The original papers on file in that case disclose the
fact that that was an equity suit brought against Dora
G. Boker as the owner of certain premises; that, being
such owner, she made a contract with the complainant,
Browm, to erect a building. The suit was brought by
the contractor against the owner, and not by a material
man against the contractor and the owner as in the case
at bar. The prayer was merely for a sale of the property
and payment of the complainant’s bill from the proceeds
of such sale. There was no prayer for a personal decree
for any deficiency nor for any personal decree whatso¬
ever against the defendant Boker; so that the proceed¬
ing was strictly in ran if a mechanic’s lien suit can be
properly so styled, which is more than doubtful. In
that suit a cross-bill was filed without any permission
of the court. The prayer of the cross-bill was for a
“judgment as at law against the complainant.” The cross¬
bill failed to set up several averments which should be
contained in a properly drawn cross-bill. A general
demurrer was interposed to it without specifying
the grounds, and a decree was passed April 11,
1888, sustaining the demurrer, from which no ap¬
peal was taken. There is nothing in the decree
nor in the record to indicate upon what ground
the cross-bill was dismissed. There was a sufficient
failure to make the proper averments in itself to
make the cross-bill demurrable, or it may have been dis¬
missed by the court because no leave had been given to
file it, which in itself would have been sufficient under
the doctrine laid down bv the Supreme Court of the
United States in Bronson vs. R. R. Co. et al., 2 Wall.,
283. Certainly there was no intimation that it was dis¬
missed on the ground that a cross-bill could not be filed
in a mechanic’s lien suit. The appeal that was taken
was from the decree rendered February 11, 1889, upon
23
the original hill, nearly a year after the cross-bill was
finally dismissed, and there was nothing in the record be¬
fore the court in general term at that time to warrant
any action whatever upon the cross-bill. Even under
those circumstances, however, the court did save the
rights of the defendant who had filed the cross-bill.
There is absolutely nothing in that case to serve as an
authority to the effect that a defendant contractor
against whom a personal decree is sought can not file a
cross-bill.
In Major vs. Collins, 11 Ill. App., 658, a cross-bill was
permitted to be filed by one defendant against his co¬
defendant. To the same effect see Culver vs. Elwell, 73
Ill., 536.
In San Juan, etc.. Mining Company vs. Finch, 6 Colo.,
214, it was assumed that a cross-bill might be filed in a
mechanic’s lien case, but in that case the dismissal of
the cross-bill was held to be proper because it did not
set up the necessary allegations with sufficient dis¬
tinctness.
In Great Spirit Springs Company vs. Chicago Lumber
Company, 47 Kansas, 672, a cross-bill was permitted to
be tiled by one of the principal defendants against the
complainant.
To the same effect see—
Hartman vs. Berry, 56 Mo., 487.
Westcott vs. Bridewell, 40 Mo., 146.
In the following cases the owner himself was permitted
to set up a counterclaim:
McAdow vs. Ross, 53 Mo., 199.
Deitz vs. Leete, 28 Mo. App., 540.
Bulkly vs. Healy, 12 N. Y. Supp., 54.
Tenny vs. Power Company, 69 S. Car., 430.
24
Section 1258 of the Code of Laws for the District of
Columbia reads as follows:
“Judgment for Deficiency Upon a Sale. —In any
suit brought to enforce a lien by virtue of the pro¬
visions aforesaid, if the proceeds of the property
affected thereby shall be insufficient to satisfy such
lien, a personal judgment for the deficiency may be
given in favor of the lienor against the owner of
the premises or the original contractor, as the case
may be, whichever contracted with him for the
labor or materials furnished by him, provided
such person be a party to the suit and shall have
been personally served with process therein.”
It will thus be seen that the District of Columbia Code
makes a mechanic’s lien proceeding something more than
a proceeding in rem, enlarging it into one in personam
against the contractor, and this was so decided in the
case of Emack vs. llushenberger, 8 App. D. C., 249.
The Supreme Court of the District of Columbia in the
case of Burn vs. Whittlesey et al., 2 McArthur, 189, has
decided that in a suit brought to declare a mechanic’s
lien it is proper to allow the damage defendant sus¬
tained by reason of the failure of the plaintiff to com¬
plete the building within the time specified in the con¬
tract, and also for the unworkmanlike manner in which
the work was done.” In that case the damages appear
not to have equalled the amount of the complainant’s
claim, and therefore no application was made for leave
to file a cross-bill. The doctrine announced, however,
would necessarily sustain a cross-bill provided the de¬
fendant’s claim had been in excess of the complainant’s.
Probably the best enunciation of the doctrine con¬
tended for by the appellant Karrick, succinctly stated,
is contained in the case of Grogan vs. Raphael, 6 Abb.
Pr., 306, above mentioned. In this case the action was
filed to foreclose a mechanic’s lien against both the
25
owner and the contractor. The contractor set up a
counterclaim. The court say, page 307:
“ By the amendatory act of 1855, the con¬
tractor may be made a defendant, and a personal
judgment rendered against him of the amount
which shall be found owing by him to the party
tiling a lien. This is entirely distinct from the
judgment against the owner, which affects only
his right and title in the premises upon which the
lien is an encumbrance, and is, as respects him,
strictly a proceeding in rem. Where the party
who has imposed the lien makes the contractor
a defendant, it is, in effect, the same as commenc¬
ing an action against him for the recovery of the
claim, and the contractor may avail himself of
any defence to the claim, and has all the rights,
as a defendant, which he would have had if he
had been sued in an ordinary action, independent
of the proceedings to foreclose the lien. He may
avail himself of a set-off to the whole or to part
of the plaintiff’s claim; or if the set-off exceeds
the claim of the plaintiff, he may have judgment
for the excess. There is no reason why he should
be turned over to another action to sue for the
residue, when both parties are before the court,
and every right or advantage they could have in
another action is available in this.”
To the same effect see—
Grogan vs. McMahon, 4 E. I). Smith, 754.
Gable vs. Parry, 13 Pa. St., 180.
Attention is called to the fact that the original bill in
this case is not framed at all upon the theory of the
proceeding being one in rem. On the other hand it is
treated bv the complainant itself as a proceeding in
personam.
The prayer is (Rec., p. 5):
“That a decree he passed requiring the pay¬
ment to the complainant of the amount of its
26
aforesaid lien by such one or more of the parties
defendant as the court may determine should
make such payment, and in default thereof, that
the aforesaid land and premises be sold for the
purpose of enforcing complainant’s aforesaid lien
and paying the amount so decreed to be paid to
it and appointing a trustee or trustees for the
purpose of making such sale.’’
It will thus be noticed that the primary purpose of the
suit is to obtain a decree in personam against the de¬
fendant Karrick, and that it is only in default of obtain¬
ing payment from him personally that it has prayed that
the property itself may be sold.
Inasmuch as the appellant Karrick, who filed this
cross-bill is not the owner of the property, and as the
only decree which could be made against him is one in
personam, no reason is apparent to counsel why he at
least may not file a cross-bill in this case.
If this honorable court shall see lit to hold that the
appellee had the right to file its bill of complaint based
upon a notice of lien as defective as the one in this case,
and that a defendant contractor may file a cross-bill in
such a suit, it then becomes necessary to determine
whether the trial court erred in dismissing the case below
upon the ground that under the circumstances herein
related the words “as desired,” when applied to the time
of delivery of the material, were not sufficiently definite
to form the basis for a counterclaim for damages caused
by delay.
Effect of Words “as desired f. o. b. Cars Washington/ 1
Where a contract is silent as to the time of delivery,
it is universally held that the goods must be furnished
in a reasonable time in the course of the contractor’s
business, and what is a reasonable time is to be deter¬
mined by the circumstances of the case. But when a
27
manufacturer made a proposition to a purchaser to fur¬
nish goods “ as (Ic^wed at Washington, the manufac¬
turer must have contemplated that the goods were not
to be delivered until they were desired, and that they
were to be not merely shipped from the factory, but
delivered at Washington when the purchaser wanted
them. Otherwise the words “as desired f. o. b. cars
Washington ” would be meaningless. Certainly the pur¬
chaser must have understood by such a proposition that
when his desire as to the time of deliverv should be
communicated to the manufacturer, the time would then
become as definitely fixed as though named in the con¬
tract itself, provided, of course, reasonable notice be
given. It must not be forgotten that these words “ as
desired ” were used by the Steel Company itself, and its
own proposition with those words inserted was accepted
by Karrick (Rec., p. 6).
There surely can be no doubt that the use of the words
“as desired” give the option to the purchaser and not to
the seller to state when the goods are to be delivered.
Allentown School District vs. Derr, 115 Pa., 439;
9 A11., 55.
It is difficult to find cases exactly in point upon this
proposition, but the following indicate the trend of judi¬
cial decision:
Plaintiffs agreed to furnish lumber for defend¬
ant’s house “as fast as the builders of the house
should want it.” It was impossible for plaintiffs
to get the lumber, because of sawmills being shut
down on account of drought. Plaintiffs brought
an action for balance of purchase price. Defend¬
ant sought to recoup in damages. Held , recoup¬
ment proper.
Eddy vs. Clement, 38 Yt., 486.
Mod. Steel Structure Co. vs. Eng. Constr. Co.,
129 Wis., 31, 108 N. W., 70.
28
In an agreement by plaintiff to employ defend¬
ant '‘for 12 mos., commencing not later than the
16th of July, possibly the first of July, the date to
be fixed” by defendant, the time within which the
agreement was to go into effect was stated with
sufficient difiniteness.
Troy Fert. Co. vs. Logan, 96 Ala., 619.
Plaintiff entered into a contract with defend¬
ant for the construction of a house, the work
to be commenced on a date to be designated by
the superintendent of school buildings, and com¬
pleted within 300 days thereafter. Held: That a
notice from the superintendent of school build¬
ings that there need be no further delay in the
progress of the work, was sufficient, although it
did not name a specific day for the beginning of
the work.
Jones vs. N. Y., 65 N. Y. S., 747; 70 N. Y. S.,
46.
Where defendant agreed in writing with plain¬
tiff and various other parties to enter into a
written contract to furnish such quantities of
fuel oil as should be required by the other parties
during one year at a certain price, the agreement
to execute a contract was binding and enforce¬
able, although it did not state what quantity of
oil was to be deliverd to each of the parties pur¬
chasing.
Vicksburg Water Wrks. vs. J. M. (Juffv Pet.
Co., 86 Miss., 60, 38 So., 302.
A contract under which defendant was to pay
plaintiff wages “as long as he was disabled” was
sufficiently definite as to duration, and if plain¬
tiff’s disability became permanent, the duration
of the contract would be for plaintiff’s life.
Pierce vs. Tenn. Coal, Iron & R. R. Co., 110
Ala., 533.
29
Under a contract for the sale of certain goods,
and giving the purchaser exclusive right to sell
goods in certain territory, a provision that vendee
should have the exclusive sale of the goods “in D.
and the territory tributary thereto,” is sufficiently
definite as to the territory in which the purchaser
had the exclusive right of sale.
Kaufman vs. Farley Mfg. Co., 78 Iowa, 679.
A parol contract to sell 1,000 cords of wood, or
so much thereof as the seller can get and deliver
at a specified price per cord, without fixing any
time for performance, is not so indefinite as to
render it void.
Van Woert vs. Albany & S. R. R. Co., 67
N. V., 538.
Defendants agreed to have their steamboat, on
a certain morning, come to Port Maitland, and
then proceed up the river five miles further to
another landing, land her passengers, and imme¬
diately return to Port Maitland, take the plain¬
tiffs raft in tow and tow it about 40 miles. The
usual time for the arrival of the steamer at Port
Maitland was 3.00 A. M., and usually it took
about three hours to proceed to the other land¬
ing, land her passengers and return to Port Mait¬
land. The steamer did not return to Port Mait¬
land until evening, when it took the raft in tow.
During the night the raft went to pieces while in
tow of the steamer, because of a severe storm
which had meanwhile sprung up. Held: That
the defendant was liable.
Parmelee vs. Wilks, 22 Barb., 539.
In an action on an instrument acknowledging
an indebtedness and promising to pay it on the
happening of a certain contingency, the actual oc¬
currence of the contingency renders untenable a
contention that the contract is void for uncer¬
tainty.
Noyes vs. Young, 32 Mont., 226, 79 Pac.,
1063.
30
Where a contract provided for a purchase and
sale of one of each size of each style of patterns
produced and placed on the market for a period
of two years by an established concern engaged in
the production of such patterns, to be delivered
monthly and paid for at a definite price, such con¬
tract was not void for uncertainty, because in¬
definite as to the number to be furnished, since
the number thereof was necessarily dependent
upon the operation of the seller’s business, and
such indefiniteness was within the contemplation
of the parties and was part of the contract.
McCall Co.
300.
vs. Icks, 107 Wis., 232, S3 N. W.,
Defendant agreed to deliver in car at Sterling,
111., all the iron plaintiff needed in its business
during the then ensuing year, at $22.35 per ton.
Held: Valid.
Nat. Furnace Co. vs. Keystone Mfg. Co., 110
Ill., 427.
When one agrees with another to deliver to the
latter during a considerable period, a specific com¬
modity bv instalments, as required, with no limit
as to quantity, at designated prices payable
monthiv. Held: A good contract.
Savannah Ice Del. Co. vs. Am. Ref. Transit Co.,
110 Ga., 142; 35 S. E., 280.
Effect of Stipulation as to Time of Delivery.
In contracts relating to the sale of merchandise, time
is of the essence of the contract.
Norrington vs. Wright, 115 U. S., 188.
Cleveland Roll. Mill. Co. vs. Rhodes, 121 U. S., 255.
Jones vs. U. S., 96 U. S., 24.
W. & G. R. R. Co. vs. Am. Car Co., 5 App. I). C.,
524.
31
\
A failure by plaintiff to finish and deliver on
the day agreed upon is fatal to his right to recover
on special contract. Acceptance of building by
defendant as constructed by plaintiff is no release
of plaintiff’s obligation to finish on contract time.
Dermott vs. Jones, 23 How., 220, 233.
Even if there had been any material changes in
the plans, this would not modify the contract to
deliver the steel as desired.
Dermott vs. Jones, supra.
Where time is of the essence of a contract for
the shipment of grain, to delay shipments for 14
days is, as a matter of law, an unreasonable delay,
violative of the contract, and authorizes defendant
to repudiate it.
Denton rs. Mclnnis, 85 Mo. App., 542.
Where time is not of the essence of a contract,
the court expects the complainant who is tech¬
nically in default, to show that the relief which
he asks is, under all the circumstances, equitable.
Taylor vs. Longworth, 14 Pet., 172.
Brashier vs. Gratz, 6 Wheat., 528.
Items of Damages in Cross-Bill.
I.
Seventy Days' Delay, at $25 Per Day.
The contract between Karrick and the Storage Com¬
pany provided that the building should be completed by
November 15th (Rec., p. 257.). The number of forms
required in order to complete the building by this time
was discussed between Lavton F. Smith, the Steel Com-
pany’s superintendent, and Mr. Karrick (Rec., pp. 64,
177), so that the Steel Company must have known of the
time limit.
The plans which were offered in evidence (Rec., p. 278),
32
some of which show upon their face that they were pre¬
pared in the Steel Company’s home office and some in the
office of its representative, Layton F. Smith, in Balti¬
more, bear upon their face the statement that they were
prepared for a storage warehouse to be built not for
Karrick, but for the Fidelity Storage Company, so that
the Steel Company knew that Karrick had a contract with
the Storage Company for the erection of this building.
The testimony shows that the provision for liquidated
damages which was inserted in Karrick’s contract with
the Storage Company was a very common provision (Rec.,
p. 222), and one which therefore might reasonably have
been within the contemplation of the Steel Company.
The minutes of the corporation (Rec., pp. 246, 247,
142) offered in evidence show that the board of directors
instructed the officers of the Storage Company to enforce
the contract stipulation, deducting from the pay due Mr.
Karrick the sum of S25 per day for the delay between
November loth and January 25th, at which date he
turned the building over to the Storage Company (Rec.,
p. 178). This was the result of a discussion on the sub¬
ject between Mr. Justice Brewer, Mr. Morris, Mr. Karrick,
and Mrs. Karrick (Rec., pp. 135, 246, 156, 182). This
amount was deducted accordingly from the compensation
paid Mr. Karrick (Rec., pp. 58, 59, 141, 142).
The Supreme Court of the United States in the case
of U. S. vs. Behan, 110 U. S., 338, has laid down the
rule that a party injured by the breach of a contract
should be made whole for his losses and expenditures,
and also for the profits which would have resulted from
the performance of the contract, upon proof that direct
as distinguished from speculative profits would have
been realized; that if the profits which would have been
realized are not proved, ‘‘the party is confined to his
loss of actual outlay and expense. This loss, however,
he is clearly entitled to recover in all cases, unless the
33
other party, who has voluntarily stopped the perfor¬
mance of the contract, can show the contrary.” . . .
“The party who voluntarily and wrongfully puts an end
to a contract and prevents the other party from per¬
forming it is estopped from denying that the injured
party has not been damaged to the extent of his actual
loss and outlay fairly incurred.”
Again the same court in the case of Smith vs. Bolles,
132 U. S., 125, applying the well-known rule of law on
the subject, has held, when determining what damages
are proximate, and so recoverable, that those results of
the actions of the party in default are proximate which
the wrongdoer, from his position, must have contem¬
plated as the probable consequences of his act.
Applying these principles to specific cases, attention
is called to the following instances where the courts have
permitted a recovery of damages which the plaintiff was
required to pay to a third party as a result of the de¬
fendant’s breach of his contract, even though the defend¬
ant did not know of the stipulation in that contract
providing for the deduction of liquidated damages.
The case of Murdock vs. Jones, 3 App. Div., 221, was
a mechanic’s lien case decided in the State of New York.
In that case the plaintiff, Murdock, entered into a con¬
tract with defendant Jones by which Murdock was to
construct a dwelling-house for Jones for a specified sum.
Murdock entered into a contract with the defendant Tile
Company whereby the latter was to furnish the trim and
cabinet work for the house. The Tile Company was
guilty of delay in the performance of its contract, and
also furnished improper materials; and Murdock claimed
to have been damaged thereby in a sum greater than the
amount due the Tile Company by him. The court says,
at page 224:
“Though the evidence does not show that the
defendant was informed of the time within which
1568—3
34
the plaintiff, under his contract with Jones, was
hound to construct the house, still it abundantly
appears that he knew the plaintiff had a contract
for such construction. lie also knew that the
materials were for this particular house; that they
were not such as could he supplied by the market,
but had to he got out, fashioned and framed in
accordance with special designs. Under this state
of facts, the case falls directly within the rule of
Booth Vi s*. Spuyden Duvvil Roll. Mill. Co. (60
N. V., 4S7), and the appellant was hound to in¬
demnify the plaintiff against any damage he might
suffer under his contract with Jones. There is a
further answer to this claim of the appellant. It
knew that its delay in furnishing the material
contracted for would necessarily delay the com-
pletion of the house, and had there been no con¬
tract between plaintiff and Jones, hut the plain¬
tiff had been the owner of the property, w r e can
not see why the rule of damage adopted hv the
referee would not be entirely fair and applicable.”
In the State of New York was also decided the case of
Meyer vs. Haven, 70 App. Div., 529. This was also a
mechanic’s lien case, and is so closely on all fours with
the case at bar as to be worthy of the very closest con-
sideration by this court.
In that case the defendant Haven, on May 12, 1892,
entered into a contract with the N. Y. C. <fc H. R. R. R.
Co. to construct certain shops for the railroad company
at Depew, N. Y. Haven sublet the structural iron work
to the plaintiffs. The brickwork was erected by Haven
to the height of 26 feet. The wmrk was then suspended
for the reason that the plaintiffs were not in readiness
to erect the iron trusses. This continued until early in
the following September, when plaintiffs requested Haven
to complete the walls of the shop to the required height
of 34 feet, as they w’ere ready to place the trusses upon
the walls. In compliance with this request Haven com-
35
pie ted the walls to the height of 34 feet by the 7th of
September, and that day gave notice to the plaintiffs
that the walls were erected and ready for the trusses.
On the night of September 13th, the walls between the
point where the trusses had been placed upon them and
the point where the walls had been raised to the
height of 34 feet, were blown down.
In Haven’s contract with the railroad company there
was a clause requiring the retention by the company of
10 per cent of the contract price until the building should
be completed, also a stipulation that the sum of $50 for
each day’s delay after the time fixed for the completion of
the building should be deducted from the contract
price. The evidence showed that the failure of the plain¬
tiffs to deliver the iron at the time agreed upon resulted
in the following damages to Haven:
1. The necessary expense of repairing and re¬
building the walls.
2. The value of the property destroyed.
3. The amount expended in removing the debris
and cleaning the brick.
4. Interest on the 10% retained during the
period of delay.
5. The necessity of completing a large portion
of the work during the winter season, at an in¬
creased expense amounting to at least $2,435.
6. The necessity of retaining the services of the
engineers, foremen, bookkeepers and timekeepers
employed on the work, at a salary and wages
amounting to $4,166.
7. The necessity of devoting Haven’s own time
and personal services to the performance and com¬
pletion of the work during the period of delay,
which were reasonably worth the sum of $2,000.
S. The forfeiture of $50 per day for each day’s
delay.
Plaintiffs filed a mechanic’s lien suit against the rail¬
road company (the owner of the building) and Haven
36
(the contractor) as in the case at bar. Haven filed a
counterclaim for damages, as is also done in the case
at bar.
Upon a reference made to the referee, he allowed the
first three items of damage mentioned above, but disal¬
lowed the last live.
The report of the case indicates that the plaintiff was
not aware of the clauses in the contract providing for
the retention of moneys or the deduction of $50 per day
as damages for delay. Notwithstanding that, the court
held that the referee should have allowed not only the
first three items but the last five also. The court quotes
from the opinion of the Court of Appeals of New York
in the previous case of Leonard cs. N. Y., etc., Tel. Co.,
41 N. Y., 566, as follows:
“It is not required that the parties must have
contemplated the actual damages which are to be
allowed. But the damages must be such as the
parties may fairly be supposed to have contem¬
plated when they made the contract. Parties en¬
tering into contracts usually contemplate that
they will be performed, and not that they will be
violated. They very rarely actually contemplate
any damages which would flow from any breach,
and very frequently have not sufficient informa¬
tion to know what such damages would be. As
both parties are usually equally bound to know
and be informed of the facts pertaining to the
execution or breach of a contract which they have
entered into, I think a more precise statement of
this rule is, that a party is liable for all direct
damages which both parties to the contract would
have contemplated as flowing from its breach, if,
at the time they entered into it, they had bestowed
the proper attention upon the subject and had
been fully informed of the facts.”
Again the court said at page 537:
“One who violates his contract with anot her is lia¬
ble for all the direct and proximate damages which
37
result from the violation, including gains pre¬
vented as well as losses sustained. . . . This
rule is subject to the qualification that the person
injured by the breach of the contract is bound to
do whatever lies in his power to render the dam¬
ages as light as possible.”
In Mod. Steel Struc. Co. rs. Eng. Constr. Co., 129 Wis.,
31,108N. YV., 70, the English Construction Company made
a contract to build a county court-house to be enclosed
and roofed before the expiration of 1901, and completed
for occupancy by the county before September 1, 1902.
A provision was inserted for the deduction of $25 per
day from the contract price for each day’s delay in com¬
pletion. The English Construction Company entered
into a contract with the Modern Steel Structural Com¬
pany (the plaintiff) to furnish the iron work “as it may
be wanted to work into the building.” The latter com¬
pany failed to furnish the iron until about September 1st,
although notified so to do. This forced the English Con¬
struction Company to seek a modification of its contract
with the county, and it secured a supplemental contract
with the county, extending the time of completion to
May 1, 1903. This supplemental contract provided that
in lieu of the deduction of $25 per day after September
1st, the salary of a superintendent to be furnished by the
county should be deducted during that time. The
building was completed within the extended time, and
the plaintiff brought an action to recover a balance of
$500 unpaid. Among the defenses were (1) that the
failure of the plaintiff to furnish the iron as ordered
compelled the making of the modified agreement re¬
quiring the deduction from the amount due defendant
of the wages of the county superintendent from Sep¬
tember 1st to the date of completion, resulting in a loss
to the defendant of the amount thus deducted; (2) that
it had to pay a subcontractor for tile work for loss of
time and expense incurred through plaintiff’s delay;
and (3) that it had to pav masons and carpenters for loss
of time while waiting for iron.
The lower court held these defenses untenable and
awarded a judgment in favor of the plaintiff, but this
judgment was reversed, and the three items mentioned
allowed by the Supreme Court which said (page 38):
“In the early part of the summer of 1901, the
work of construction had been completed to a
point where the iron was needed to enable defend¬
ant to continue the structure. Plaintiff failed to
furnish such iron until the latter part of Novem¬
ber, when the building season had practically
closed. Under the facts and circumstances of the
transaction, we are unable to find any ground for
saying that this delay by plaintiff could, in any
conceivable way, be deemed permissible under
the contract. It is obvious that the parties under¬
stood that, in the regular course of constructing
the building, the iron would be needed to work
into the building in the early part of the season
of 1901. In view of these circumstances, it must
follow that plaintiff became liable to defendant
for any damages suffered on account of delay in
furnishing the iron. It is insisted that plaintiff
did all it reasonably could to supply the iron as
it was needed, and that it was unavoidably de¬
layed by the manufacturer in manufacturing and
forwarding it. There is no stipulation in the con¬
tract makingsuch inability to secure the material
from the manufacturer a condition excusing per¬
formance and relieving plaintiff from the conse¬
quences of nonperformance of its terms.”
Counsel believe that a little reflection will convince
the court that the allowance of the amount of $25 a day
deducted from Ivarriek’s compensation by the Storage
Company is only reasonable. If the contract for the
erection of the building had been made directly by the
39
Storage Company with the Steel Company and the Steel
Company had been in default as in this case, then under
the rule laid down by this court in W. & G. R. R. Co .vs.
Am. Car Co., 5 App. D. C., 524, the measure of damages
would have been (excluding for the present the other
elements in this case) the rental value of the warehouse
during the period of the delay in completion, because
that would have been the loss sustained by the Storage
Company. In this case the Storage Company has sus¬
tained no loss for which it makes a claim, because the
amount of the rental value had been previously agreed
upon by the Storage Company and Karrick, and was de¬
ducted by the Storage Company from the compensation
paid Karrick (Rec., pp.58, 59). Karrick, however (who is a
defendant here), was the loser,and he lost precisely this sum
of $25 per day for each of the seventy days of delay; and
the evidence shows that this was less than the rental value
of the building (Rec., pp. 64,246). Is the Steel Company
to be exonerated from any liability for this loss because
it is Karrick, and not the Storage Company, who sus¬
tained it? The Steel Company must have contemplated
that some loss would ensue from the delay. What that
loss is in contemplation of law has been determined by
this court, to wit: the rental value of the property.
Surely it can not be that the Steel Company must pay
nothing for this default because at the time the Storage
Company and Karrick made their contract it was not
consulted as to whether the stipulated damage would
be the actual amount of loss. The evidence in the case
at bar shows that it is less than the amount of the loss
to the Storage Company (Rec., pp. 64, 246), and it was
competent in this case for the Steel Company appellee
to show, if it could, that the loss was less than the $25
per day which was deducted. No such evidence was in¬
troduced or even hinted at; and it must be assumed
40
therefore that the rental value does exceed the actual
loss incurred by Karrick.
It was contended by appellee below that the Fidelity
Storage Corporation was not a real corporation, but was
practically Karrick himself, and that no deduction of
$25 a day or of any other sum by that corporation from
the funds due Karrick could be considered bv the court
under these circumstances.
It would hardly seem to lie in the month of the ap¬
pellee to set up this contention. The Fidelity Storage
Corporation is made a party defendant as a corporation
(Rec., pp. 2, 5). The appellee, in its bill of complaint,
through its president (Rec., p. 5),swears that the Storage
Corporation is a corporation “duly incorporated under
the laws of the State of Virginia” (Rec., p. 2), and that
Karrick conveyed the real estate involved to the Fidelity
Storage Corporation (Rec., p. 5), which corporation it
swears then placed a deed of trust upon the property
(Rec., p. 3). It was also stipulated in the record that
these facts are true (Iiec., p. 50). Dealings between the
Fidelity Storage Corporation and the Washington Loan
and Trust Company are set forth under oath in the bill
of complaint (Rec., pp. 2-4). The bill recites that a copy
of the notice of mechanic’s lien was served upon this cor¬
poration (Rec., p. 4). The record contains the charter
and minutes of the corporation (Rec., pp. 242-247). If
the name of the party against whose interest the lien is
claimed is anywhere stated in the notice of lien filed in
the clerk's office, the appellee is contending here that it
is the Fidelity Storage Corporation. Under all these cir¬
cumstances it is difficult to conceive how the appellee
can now be permitted to say that there is no such cor¬
poration, or that the corporation is identical with
Karrick.
It is a principle of law so well settled that no argu¬
ment need now be made in support of it, that a stranger
41
can not deny the corporate existence of even a de facto
corporation under these circumstances.
Frost vs. Frostburg Coal Co., 24 How., 278.
Mackall vs. C. & O. Canal Co., 94 U. S., 308.
B. & P. R. R. Co. vs. Fifth Baptist Church, 137
U. S., 568.
Ohio Nat. Bk. vs. Construction Co., 17 App. D. C.,
524.
Fields vs. U. S., 27 App. D. C., 433.
U. S. vs. Williams, 5 Cr. C. C., 62.
10 Cyc., 252-260.
But the record shows that this corporation was duly
organized, and is existing, under the laws of the State of
Virginia (Rec., pp. 242-247), and that the deduction of
$25 per day was authorized by the directors of the cor¬
poration at a regular meeting (Rec., pp- 246, 247).
Assuming for the sake of the argument, however, that
the corporation is not in existence, or that Karrick and
the corporation are one, does this advance the interests
of the appellee to the slightest extent? Manifestly not.
If the deduction of $25 per day made by the corporation
from the funds due Karrick is to be considered merely
as a deduction of that amount in a payment from Kar¬
rick to himself, it nevertheless remains true that some¬
body (and that somebody must be Karrick under this
hypothesis) has sustained whatever loss was caused by
the delay in the completion of the building. That loss is,
as this court has said in W. & G. R. R. Co. vs. Am. Car
Co., 5 App. I). C., the rental value of the property. Inas¬
much as the evidence shows that the rental value of the
storage warehouse during the period in default was
more than the 825 a day which is claimed here, then
Karrick is still entitled to this deduction (Rec., pp. 64,
246).
42
II.
Use of Hoisting and Concrete Plant, Seventy Days , at
$9 Per Day.
Karrick (Rec., p. 67), Clark (the timekeeper) (Rec.,
pp. 76, 77), Smythe (the bookkeeper) (Rec., p. 86), and
Sparshott (the engineer) (Rec., p. 99), all testified that
the hoisting and concrete plant was in use up to January
25th, and then taken away. The testimony shows that
there would have been no further use for the hoisting
engine if the building had been completed by November
15th (Rec., p. 67). The retention of the hoisting plant
during the seventy days of delay, was therefore a direct
item of expense to Mr. Karrick.
The record shows that the amount usually paid for
similar hoisting plants and concrete mixers would be $9 a
day, including the labor of the engineer (Rec., pp. 77,100);
and Mr. Karrick testified that he had paid 89 a day him¬
self for a plant not as good as that, and that he had to
refuse another job for this plant during that seventy
days, for which he was offered 89 per day (Rec. pp. 68,
138, 158).
There is no testimony to the contrary.
This court has had underconsideration the case of Wash¬
ington & Georgetown R. R. Co. vs. The Am. Car Co., 5
App. D. C., 524. In that case it appeared that a con¬
tract had been made by the railroad company with the
car company, whereby the latter agreed to furnish a cer¬
tain number of cars within a time prescribed. The court
held that time was of theessenceof the contract, and that
the car company was answerable in damages for failing
to deliver the cars at the time agreed upon, and that
true measure of damages in such a case was the reason¬
able rental value of such cars from the time thev should
43
have been delivered to the time of the actual delivery,
less the interest on the contract price during such time.
III.
Watchman , Seventy Days, at $1.50 Per Day.
The undisputed testimony is that from the 15th of
November until the roof was completed it was necessary
to keep up fires all night in the endeavor to keep the
concrete and mortar from freezing (Rec., pp. 62, 76, 87,
91, 101, 108, 109), and that a watchman was employed
for this purpose, who was paid $1.50 per day for his serv¬
ices (Rec., pp. 87, 108).
If the damage incurred by Mr. Karrick, as the result
of freezing, is properly chargeable to the Steel Company,
then this item should be allowed.
It is no new thing for the courts to declare that dam¬
ages due to a change in the weather must or should have
been within the contemplation of parties entering into
contracts, and that the party responsible for any delay
resulting in damage caused by a change of weather must
answer therefor.
In the case of Fox vs. B. & M. R. R. Co., 148 Mass.,
220, plaintiff delivered apples to the railroad company
under its agreement to forward same to their destina¬
tion. The weather was mild when the apples were
delivered. The defendant negligently delayed their ship¬
ment, a sudden change of weather ensued and the apples
were frozen. The defendant was held liable.
In St. L. I. M. & S. R. R. Co. vs. Coolidge,73 Ark., 112,
Coolidge delivered, on the evening of June 10, 1896, a
car of potatoes to the railroad in Arkansas, for shipment
to Chicago, a trip which should have taken two days.
The time actually consumed in transit was very much
more than that, and the potatoes when delivered were
heated and rotten, and had deteriorated about 75 cents
per bushel. The evidence showed that the unusual time
44
consumed in transit had caused the damage. The railway
was held liable.
In (loodloe vs. Rogers, 9 La. Ann., 273, on January 8,
1849, plaintiffs contracted to build and put in operation
on defendant’s plantation, on or before June 18, 1849, a
sugar mill and steam engine. A delay ensued and de¬
fendant was compelled to windrow his crop to preserve
it from the frost, causing a large deficiency in the amount
of sugar produced; defendant was also compelled to
pay in consequence of the delay twenty-one days’ extra
wages to six hired hands, as well as an engineer. The
court held that it must have been in contemplation of
the parties that the sugar mill and steam engine were to
grind the crop of sugar-cane in 1849, and that while the
damage to be recovered must, as stated by Greenleaf
(vol. 2, page 10), be the natural and proximate conse¬
quences of the act complained of, the loss of the defend¬
ant’s crop and the extra wages of the hands hired by
him, were the natural and proximate results of the fail¬
ure of plaintiffs to comply with their obligation.
In the case of Meyer vs. Haven, 70 App. Div.,529, 75
N. Y. Supp., 261, heretofore referred to, the action of
the weather during the plaintiff’s period of default was
responsible for the damage caused, and the court held
the plaintiffs liable for the wages paid the employees of
defendant as a result of the delay, and held that it was
the duty of the defendant to do whatever lay in his
power to render the damages as light as possible, and
that plaintiff must compensate him for the expenses in¬
curred in so doing.
To the same effect was the case of Modern Steel
Structural Co. vs. Eng. Constr. Co., 129 Wis., 31, supra.
IV.
Coal for Heating.
The testimony in the case (and there is none to the
contrary) shows that when the weather was cold fires
45
were built in wheelbarrows and kept going all night, in
the endeavor to keep the concrete from freezing (Rec.,
pp. 62, 107). The engineer says that he would send up
seven or eight wheelbarrow loads of coal a day, averaging
about 185 pounds of coal to the barrow, and that eight
tons of coal were used, which, at $4.38 a ton, would
amount to the sum charged, to wit, S35 (Rec., pp. 67, 87,
100, 101, 104).
V.
Stoi'es, Canvas , and Straw.
The unanimous testimony is that in order to cover up
the work and keep the frost from it as much as possible
it was covered over with straw (Rec., pp. 61,75, 87, 107),
with canvas laid on top (Rec., pp. 61,75, 87,107, 187), and
that stoves were placed on the floor underneath (Rec., pp.
39, 87, 107), with holes through the floor under construc¬
tion so as to permit the heat to rise underneath and
through the floors and spread over the surface under¬
neath the canvas (Rec., pp. 61, 75, 87).
There were two stoves which cost $6 each; the canvas
cost $28, and the straw $14, making a total of $54 on this
account (Rec., p. 67).
VI.
Extra Forms.
The witnesses on both sides of the case all agreed that
after freezing weather set in it took the concrete longer
to set and that consequently the forms would have to
remain longer in place (Rec., pp. 59, 60, 83, 145, 212, 225,
227). As a result, the necessity became apparent for an
extra half set of forms, in order to hasten the construc¬
tion as much as possible, and this extra half set was sup¬
plied in November (Rec., pp. 64, 77, 84, 88, 94, 106).
Mr. Gant, who had bought and sold lumber for several
years, says that at that time lumber was worth $24 a
thousand feet (Rec., p. 107), and Mr. Karrick says that
46
$20 per thousand is the fair market value of lumber at
that time (Rec., p. 65). Mr. Karrick qualified as a prac¬
tical builder of many years’ standing, who was thoroughly
familiar with the values of lumber and other building
materials (Rec., pp. 65, 146). He says that the extra half
set of forms cost $1,474 (Rec., pp. 64-67, 138, 139, 155,
156, 168-173).
There is no testimony to the contrary, except the con¬
jecture of Mr. Smith, the Steel Company’s superintendent.
Ilis statements in that regard can hardly be called testi¬
mony. When Mr. Karrick was on the witness stand he
(Karrick) was asked to draw a rough sketch of the way
in which the forms were placed on that building, and a
copy of this rough sketch is in the record (Rec., p. 170).
An inspection of it will at once show that it would be
impossible for anyone to estimate the amount of lumber
in the forms from any such rough sketch (Rec., pp. 171,
222, 223). Mr. Smith, basing his estimate merely upon
that rough sketch (Rec., p. 220), says that Mr. Karrick’s
estimate of the expense is at the rate of 24.6 cents a
square foot, while ordinary contractors would not allow
more than 12 cents for this same work (Rec., p. 207). He
admits, however, that he knows nothing about the price
of lumber in this city (Rec., p. 221), nor does he know
the kind of lumber that was used (Rec., p. 222).
VII.
Extra Cost of Concrete Labor.
All Karrick’s witnesses agree that whether the weather
was actually freezing or not, if it looked like it was go¬
ing to freeze, the men would have to quit from 2.30 to
4 o’clock every afternoon in order to put the stoves,
canvas, straw, etc., in place, and that it would take from
an hour to two hours in the morning to uncover the
work again, before construction could be resumed (Rec.,
pp. 62, 68, 75, 107).
47
Karrick says that this occurred about every afternoon
from the first of November until the 25th of January;
that the working day is nine hours, and that he com¬
putes about one-fourth of the day as lost during this
period. In order to determine the amount of pecuniary
loss suffered on this account, he deducted one-fourth of
the cost of putting in the concrete work on the eighth and
ninth floors, which was Si,442 in all, one-fourth of which
would be $360 (Rec., pp. 62, 68, 179, 180).
lie is corroborated in this respect by Clark (Rec., p.
75), Smythe (Rec., p. 87), Sparshott (Rec., p. 101), and
Gant (Rec., p. 107).
There is no testimony to the contrary.
%■ %/
Not only does the evidence show that these precau¬
tions were suggested by the Steel Company’s superin¬
tendent, Mr. Smith (Rec., pp. 61,205,272), and were the
proper precautions to take (Rec., pp. 205, 228), but the
courts have held that it was the duty of Karrick to take
these precautions, and that the plaintiff must compen¬
sate him for the expense incurred in so doing.
Murdock vs. Jones, 3 App. Div., 221.
Meyer vs. Haven, 70 App. Div., 529, 75 N. Y.
Supp., 261.
VIII.
Foreman of Concrete , Seventy Days.
Karrick says he paid the concrete foreman $4 per day
during the extra seventy days, in which respect he is corrob¬
orated by Smythe the bookkeeper, and this is undisputed
(Rec., pp. 68, 88, 48).
IX.
Karrick 1 s Time, Seventy Days , at $5 Per Day.
The undisputed testimony is that Karrick had to
spend time on the building during these seventy days of
48
delay that he could have used to a much greater profit
than the amount charged, viz, $5 per day (Rec., p. 68).
In the case of l*. S. rs. Behan, 110 U. S., 338, above
referred to, the Supreme ('ourt of the United States says
that when a party injured by a breach of contract elects
to sue for damages—
‘‘the first and most obvious damage to be shown
is the amount which he has been induced to ex¬
pend on the faith of the contract, including a fair
allowance for his own time and services.”
To the same effect is Meyer rs. Haven, 70 App. Div.,
520, 75 X. Y. Supp., 261, where the court allowed $2,000
to the defendant as the value of his time and services
under similar circumstances.
X.
Forman of Carpenters, One-Half of $3 Per Day for
Serenty Days.
The testimony shows (and there is no dispute about
it) that the foreman of carpenters was paid $3.35 per
day, and Mr. Karrick savs that at least half of his time
during these extra seventy days could not have been
profitably used on that building (Rec., pp. 08, 88).
XI.
Deterioration in Signs.
The specifications offered in evidence show that Kar¬
rick was to make good to the Storage Company any de¬
fective part in the building (Rec., p. 248), and he agreed
agfain to do this when he turned the building over to
the company on January 25th (Rec., pp. 157, 178).
The undisputed testimony shows that the mor¬
tar froze and fell out of the joints of the brick¬
work from twenty to twentv-four feet down from the
* •
top on both the east and west walls, and that it
40
will he necessary to replace the mortar; that the mor¬
tar in falling out left streaks through the signs, thus
damaging them in a number of places on both these
walls, necessitating the repainting of the entire signs;
and that this falling out of the mortar was due to the
frost. All of this is testified to by Karrick (Rec. p. 60),
Clark (Rec., p. 76), Smvthe (Rec., pp. 86, 87, 80), Gant,
(Rec., p. 108), Gregg (Rec., pp. 114, 115), Cissell, the
expert bricklayer, (Rec., pp. 126-131), and Hilbert, the
sign painter (Rec., pp. 124, 125).
Karrick states the signs were put on when the fact
that the mortar had been damaged to such an extent
that it would fall out had not been discovered (Rec., p.
138). In this he is corroborated by Smythe (Rec., pp.
02, 03) and by the architect Gregg, who stated that he
did not observe the damage to the signs when he first saw
the building after its completion (Rec., p. 115); also by
Ililbert, the sign painter, who says he observed the signs
when they were first put there, and they then looked all
right (Rec., p. 124).
Karrick states that the results of freezing do not
become apparent in every case as soon as the freezing
takes place (Rec., p. 138).
Gregg says in some instances it has been three years
before he has noticed the results of the freezing of
mortar, and that there is no fixed time for it to become
apparent (Rec., p. 112).
Karrick says it will cost $250 to replace the signs
(Rec., p. 69), but Hilbert, the sign painter, says that
$226 would be a fair and reasonable estimate for this
work (Rec., p. 124).
There is no evidence to the contrary.
The Supreme Court of the State of New York in the
case of Meyer vs. Haven, 70 App. Div., 529, has allowed
as a proper item of damage, in a precisely similar case,
the value of all property destroyed.
1568— 4
50
XII.
Stucco.
All the witnesses agree that the stucco did not stick
(Ilec., pp. 71, 76, 89, 137); that the stucco on the north
end froze and scaled off, although they covered it with
canvas and tried to prevent it from freezing.
Gregg, the architect, says that freezing weather fol¬
lowing the day stucco work is put on would cause the
surface to scale off (Rec., p. 112).
Magrini alone attributes the falling off of the stucco
to the fact that brick and mortar was used in the stucco
work.
This statement is disproved, however, by Karriek
(Ilec., p. 70), Clark (Rec., p. 77), and Smvthe (Rec., p.
88), all of whom say that the stucco work is only from
half to three-quarters of an inch thick and that it would
be impossible to get broken bricks in it.
Karriek says the stucco work is made of cement, sand,
and lime water, and that it can not be removed and re¬
placed for less than $75 (Rec., pp. 70, 71, 137, 172).
XIII.
Mortar.
The testimony shows that the mortar on the east and
west walls for about twenty feet down from the top of
the building had frozen and fallen out; also that a strip
about a foot wide on the eighth and ninth floors on both
walls was likewise frozen and the mortar fell out, thus
necessitating the pointing up of an area of 8,800 square
feet of surface; that the only way to repair it is to rake
out this frozen mortar from between the joints and
replace it with other mortar.
This is testified to bv Karriek (Rec., pp. 69, 70, 138,
172), Clark (Rec., pp. 75, 76), Smythe (Ilec., pp. 86, 89),
51
Gant (Rec., p. 108), Gregg (the architect) (Rec., pp.
112, 113, 115, 118, 119), and Cissell (the bricklayer)
(Rec., p. 126).
Karrick says the mortar was made from lime and sand
in the proportions of one-third lime and two-thirds sand,
tempered with one-third Portland cement (Rec., pp. 137,
176), and that all the mortar used in the building except
the roof slabs was of the same composition (Rec., p. 176),
and the witnesses all testified that its falling out was
due to the action of frost, while it was being put in,and
after it has set it is not possible for it to be damaged by
changes in the weather (Rec., p. 176).
Gregg, the architect, says that if mortar should be
laid on a day the night following which a frost set in,
there would be a tendency to pop or fall out of the
joints; that it might fall out at once or might remain a
little while and then fall out; that in some cases it has
been years before such condition would be observable
(Rec., pp. 112, 121); that after the mortar once sets
dampness can not affect it (Rec., p. 117).
Cissell who has been in the bricklaying business for
forty-five years and is an expert on the subject (Rec.,
p. 126), says that the mortar was damaged by freezing
(Rec., pp. 126, 128), and that to remedy this condition
of things would necessitate raking out the joints and
repointing (Rec., p. 127); that this freezing could only
have occurred after the mortar was laid (Rec., pp. 128,
130); that cement was used in the mortar, which is cal¬
culated to make it stronger and benefits it; that cement
mortar means portions of cement and lime mixed (Rec.,
pp. 130, 131).
Karrick says it will cost about 10 cents a square foot
to rake out and repoint (Rec., p. 70).
Cissell says it would cost about S780 to put the walls
in good condition (Rec., p. 127).
There is no testimony to the contrary.
52
XIV.
Topping.
The undisputed testimony is that if concrete freezes
and thaws the same day, it will ruin it and require it to
he taken out, and that if topping freezes it will scale off
(Rec., p. 60); that on the eighth and ninth floors, al¬
though elaborate precautions were taken to prevent the
concrete from freezing, the topping froze from about
half an inch to one-eighth of an inch below the surface,
over an area of 60 by 100 on the eighth floor and 60 by
150 on the ninth; that the oidv way to remedy this is to
resurface the concrete where it is injured (Rec., p. 60).
This is testified to by Karrick (Rec., pp. 60, 70), Clark
(Rec., pp. 75, 76), Smythe (Rec., pp. 86, 00), Sparshott
(Rec., pp. 101, 102), Gant (Rec., p. 108), Gregg (the archi¬
tect) (Rec., pp. 112, lid), Lanford (Rec., p. 122), and
Layton F. Smith (Rec., pp. 209, 222, 223).
Karrick says that if the floors are left in the condi¬
tion they now are, the surface will not only be rough,
but subject to great wear, because the base is not made
of material as rich as the surface (Rec., p. 70). He also
says that after the concrete and mortar are set it is not
possible to damage it by changes in the weather, and
that this condition could only have been due to freez¬
ing while the work was being done (Rec., p. 176). In this
he is corroborated by Smith (Rec., pp. 222, 223).
Gregg, the architect, says he has seen this scaling off
in many other places and does not think it is due to any
other cause than that the cement was laid in freezing
weather (Rec., pp. 112, 117, 118).
Layton F. Smith, the Steel Company’s witness, says he
knows of no reason for this topping peeling off except
that the bottom had set before the topping was put on
(Rec., p. 208), but Karrick says that the topping was
53
always put in before the base had time to set, within 15
or 20 minutes, and never more than an hour after the
base was put in (Rec., p. 239); that the concrete was
made of one part Portland cement, two parts sand, and
four parts gravel or broken brick; that he never used
broken brick without a mixture of one-third gravel
(Rec., p. 151); that the top dressing was composed
of one part Portland cement and one part sand in equal
proportions (Rec., pp. 152, 176); that that is the proper
proportion as the same is used in this city for grano¬
lithic sidewalks (Rec., p. 176).
Lanford, who is in the reinforced concrete business
himself, testifies that a good topping is one part cement
and two parts sand (Rec., p. 124).
Karrick says it will cost 70 cents a square yard to do
this retopping, but that SI is the least any responsible
contractor will take it for, and that even then the top¬
ping may not stick (Rec., p. 70).
Lanford (Rec., p. 122), who is in the reinforced con¬
crete business, not working for Karrick, says that it
would cost SI a square yard to retop, which is a reason
able estimate.
There is no evidence to the contrary.
Causes for Delay.
There can be no question but what all of the items of
damage for which claims are made in the cross-bill are
fully proven. Of course, however, Karrick can claim no
compensation for these items of damage unless the
damage was caused by the nondelivery of steel when
ordered and before freezing weather set in, which is his
claim. The testimony introduced by him in this case is
that the work could have been finished by November
15th if the Steel Company had made its deliveries
promptly (Rec., p. 236).
54
The Steel Company intimates that the delay might
have been caused in the following ways:
First. By a strike between the fourth and fifth floor.
Second. By an insufficient plant and an inadequate
number of workmen, so that Karrick was not always
ready for steel as delivered.
Third. By an insufficient number of forms.
Fourth. Bv delay in delivering sand, gravel and cement.
Fifth. By not having anyone on hand to haul the mate¬
rial from the railroad.
Sixth. By a pier near the foundation being laid out
wrong.
Seventh. By contemplated changes from solid con¬
crete to tile construction.
Eighth. By changes in the roof plans.
There is no contention that the Steel Company was in
default prior to the delivery of the material for the fourth
(or third suspended) floor (Rec., p. 144), which it was
agreed should be delivered by August 16th (Rec., pp.
262, 264), but which did not reach Karrick until August
23d (Rec., p. 54). The sole question, therefore,is whether
the building could have been completed by Karrick by
the exercise of reasonable diligence if the fourth floor
steel and all subsequent shipments had been delivered
on time; anything occurring prior to the fourth flour,
therefore, is immaterial. This throws out of considera¬
tion the strike on the building during the first few days
of its construction, and any delay due to the rebuilding
of the pier.
Strike Between Fourth and Fifth Floors.
The only witness who testifies that there was any such
strike is the Steel Company’s witness Magrini, who says
that a few days’ delay occurred due to a strike at that
time (Rec., p. 32). It is significant that no other witness,
55
out of the many called on both sides, can remember any
such strike (Rec., pp. 82, 139, 176, 177). Something will
be said later as to the character of Magrini and the testi¬
mony given by him.
Insufficiency of Plant and Workmen.
The only witness who savs there was an insufficient num¬
ber of workmen is the Steel Company’s witness, Magrini
(Rec., p. 35). The Steel Company’s witness, Sprouse,
testifies, on the contrary, that he was obliged to lay off
workmen from time to time because there was not
enough for them to do (Rec., p. 189). The timekeeper,
Clark, says there were as high as eighty-nine men working
on that building at one time (Rec., p. 74), and both he and
Karrick say that at no time was there an insufficient num¬
ber of men (Rec., pp. 64, 74. 139).
As to the plant, complaints are made by the Steel
Company about an inadequate concretemixer and hoist¬
ing plant. Its witnesses, Layton F. Smith (Rec., pp.
198,215, 216), and Boyle (Rec., p. 226), both say from a
casual observation of this machinery that it was not of
sufficient capacity, but neither can testify that a day
was lost on this account (Rec., p. 216).
The witnesses on both sides all agree that the capacity
of the concrete mixer was six cubic feet every three
minutes (Rec., pp. 32, 172, 197, 215, 228, 233). Smith
(Rec., p. 199), and Boyle (Rec., pp. 225, 229, 230), with¬
out making any computation, say that this concrete
mixer was not capable of doing the work. Boyle says
it would take three weeks to put in a floor with such a
mixing machine (Rec., p. 225). A simple arithmetical
computation, as shown by the testimony of Mr. Karrick,
indicates that such a mixer could put in a floor in from
four to five days (Rec., p. 233), and Smith admits that
he does not know that any time whatever was lost on
account of what he calls its insufficient size (Rec., p. 216).
56
As to the hoisting plant, Boyle admits that he never
saw it and knows nothing about it. Layton F. Smith,
who only looked at it casually (Rec., pp. 216, 217), thinks
it was from eight to twelve horse-power (Rec., p. 216), and
does not pretend to say what the speed of the cages was
(Rec., p. 216).
Sparshott, the engineer who operated it, says it was a
twenty horse-power plant (Rec., p. 99), and Karrick’s tes¬
timony is to the effect that it would hoist a wheelbarrow
of concrete or bricks in three seconds, and he figures
that this would hoist all the material for one floor in
three days of nine hours each, if run at its full capacity,
but Karriek says it never was run at its full capacity
because it never was necessary to do so (Rec., p. 234).
Forms.
Both Layton F. Smith (Rec., pp. 197, 214) and Boyle
(Ilec., p. 225) (the Steel ('ompany’s witnesses) say there
should have been three sets of forms for this building.
The testimony shows that there were from one and one-
half to two sets of forms at the start, and when cold
weather set in an extra half.set was made (Rec., pp. 64,
106, 144, 177, 185, 197, 213).
The testimony of Smith and Boyle, however, is based
upon the assumption that it was necessary that these
forms should remain in place for three weeks (Rec., pp.
200, 227). But Smith admits that he himself has taken
forms out inside of three weeks and that it would be
safe to do so (Rec., p. 212). The testimony of Smith
and Boyle apparently contemplates the completion of
an entire floor at a time. This building was not con¬
structed in that wav. but the floors were constructed
%
in sections and the forms for each section removed and
reerected in another place as the concrete work in each
section was completed (Rec., pp. 236, 237).
The undisputed testimony is that prior to November
57
the forms did not remain in place more than two weeks,
and that they were frequently taken out in ten days
(Rec., pp. 59, 145, 179, 212). Indeed, Magrini (the Steel
Company’s star witness) savs that most of the time the
forms were taken out in six or seven days (Itec., pp. 38,
60). The utmost limit given by anyone as the time when
these forms remained in place was that stated by Sprouse
(the Steel Company’s witness), who said that the forms
had to stand about eighteen days (Rec., p. 185). Smith
admits that Karrick had appliances for doing work more
expeditiously than usual (Rec., p. 213).
Magrini is the only witness who was on the work and
who says the forms were not always ready for the steel
when the steel was delivered (Rec., pp. 33, 38). This is
explicitly denied by Karrick (Rec., pp. 59, 64, 71), by
Clark his (timekeeper) (Rec., p. 77), by Smythe (the book¬
keeper) (Rec., p. 88), and by Sparshott(theengineer) (Rec.,
p. 100), all of whom say that they were always ready for
the steel as it arrived except when two floors were
shipped together, contrary to Karrick’s orders.
Delay in Delivery of Sand , Gravel , and Cement.
Magrini alone testifies that there was any such delay
(Rec., p. 36). The Steel Company’s own witness Sprouse
emphatically and repeatedly denies this (Rec., p. 190),
and Karrick gives a detailed denial of it (Rec., pp. 175,
176).
Failure to Have Sufficient Teamsters.
Magrini alone testifies that there was any delay in not
having anyone on hand to haul the material from the
railroad, and he admits that this occurred only on the
sixth floor, and says he thinks the delay was from six to
seven days (Ilec., p. 37). Inasmuch as the Steel Com¬
pany’s letter, dated October 4th, shows that this ship¬
ment left Pittsburg on October 3d (Ilec., p. 268), and
58
inasmuch as two weeks was ordinarily consumed in
transit (Kec.,p. 271), and as it is stipulated that Karrick
received this shipment on October 14th (Rec., p. 54), it
is impossible that Magrini’s statements in this regard
can be accurate, particularly when considered in con¬
nection with his statement that he did “not know any¬
thing about the hauling” (Rec., p. 32). Mr. Karrick
states the only delay in unloading was upon one occasion
when the railroad company failed to put the car under
the crane so that it could be unloaded (Rec., pp. 71,
72, 176).
A Pier Near the Foundation Being Laid Out Wrong.
This is immaterial, because it occurred at a time when
it is not claimed by the complainant that the Steel Com¬
pany was in default (Rec., pp. 205, 239). The evidence
shows that it was laid four inches out of plumb, which re¬
quired nothing to be taken down, but four inches had to
be added to the thickness, and that this caused no delay
whatever in proceeding with the concrete work (Rec.,
p. 239).
Contemplated Changes From Solid Concrete To Tile
Construction.
There is absolutely no foundation fora claim that the
casually considered idea of making a change in this re¬
gard caused any delay. No one will testify that it did,
and Layton F. Smith admits that no direction was given
to the home office to hold back steel on that account
(Rec., p. 212). Karrick states that in July, 1905, a dis¬
cussion was had between Smith and himself as to
whether the floors should be of solid concrete or tile
construction, but the thought of tile construction was
abandoned after the receipt by Karrick of Smith’s letter
dated July 8th (Rec., p. 259). Meanwhile the parties
were proceeding under the original plans and the evi-
59
deuce does not indicate that any delay whatever was
caused in this regard (Rec., pp. 166, 167, 173, 183, 202,
203, 212, 259).
Changes in the Roof Plans.
No witness claims that any delay occurred on this
account. The testimony shows that no working plan of
the roof had ever been furnished by the Steel Company
until after it had been decided to eliminate every other
beam; that eliminating every other beam made no dif¬
ference whatever in the size of the steel nor of the beam
boxes (Rec., pp. 152, 163, 164, 201, 202, 211, 238).
There is no dispute about the fact that the building
was completed sufficiently to turn over to the Fidelity
Storage Corporation, and was turned over to that com¬
pany on January 25, 1906. This is testified to bv Karrick
(Rec., pp. 58, 74, 137, 156-158, 178), Clark (Rec., pp. 79,
81), Smythe (Rec., pp. 86, 90, 91), and Sparshott (Rec., p.
99). Magrini says the concrete work was completed about
January 15 (Rec., p. 41).
Magrini does not claim that any of the delays men¬
tioned by him occurred after the fifth floor was put on,
and it is agreed that the material for the sixth floor was
received on October 14, 1905 (Rec., p. 54).
Credibility of Magrini.
Although Magrini denies this (Rec., pp. 42, 48), Kar¬
rick says that Magrini was discharged by him twice for
drinking (Rec., pp. 73. 139, 140, 147). Clark (the time¬
keeper) (Rec., p. 78), and Smythe (the bookkeeper)
(Rec., pp. 88, 92) both corroborate Karrick.
Magrini appears to have been a rolling stone as well
as considerable of a loafer, as is evidenced by his record
of work during a few years covering the period in con¬
troversy here.
60
Magrini says on cross-examination that although he
left the building about December 24, 1005 (Rec., pp. 30,
41), he did not leave the city until about January 22,
1906 (Rec., p. 41); that meanwhile he was living right
next door and was not looking for employment (Rec., p.
41); that the re-enforced concrete work was completed
January 15th (Rec., p. 41). The testimony showed that
witness had been located from the spring of 1905 until
April 29, 1908, at which date his testimony was given, in
the following cities (Rec., pp. 29, 42-44):
Chicago, filtration plant.
Washington, filtration plant, spring, 1905.
Washington, with Karrick, May, 1905-December 25,
1905.
Pittsburg, Sp vulatiug. January 22,1906-April 19,1906.
Washington, three or four days.
Lancaster, Pa., (Jen. Supt. Wickinsham Bldg., April,
1906-June 14, 1906.
Columbia, S. C., Sorgam Oil Co., June 1906-Septem-
ber, 1906.
Raleigh, N. C., Gen. Supt., Nazareth, $150 per month
anti exp., October 3, 1906-June 21, 1907.
Jamestown Exposition, pleasure, about a month.
Atlanta, Ga., business, eight or ten days.
Charlotte, few days.
Raleigh, few days.
Norfolk, loafing.
Norfolk, working on Naval V. M. C. A., January 21,
1908, to date.
Magrini was the man who, after his discharge by Kar¬
rick, was recommended for other work by the Steel Com¬
pany’s superintendent, Layton F. Smith (Rec., pp. 48,
223), and his testimony is evidently not very accurate,
for the reason that he positively states that the weather
was very mild until he left the work at Christmas time,
and that the only freezing weather occurred around
61
Thanksgiving Day (Rec., pp. 38, 39). Aside from the
fact that the records of the Weather Bureau, which
were offered in evidence, conclusively show his mistake
in this regard, he is contradicted by all the other wit¬
nesses in the case.
It would not have been possible for Magrini to have
forgotten the precautions which were taken to prevent
freezing, and which Karrick, Clark, Smythe, Sparshott
and Gant say were taken from early in November down
to the time when the work was finished (ltec., pp. 62,
68, 75, 107, 87, 101). Notwithstanding this, Magrini says
that he did not observe any freezing of the concrete, and
he thinks a couple of stoves were used for about two
days only (Rec., p. 39). The evidence as to the effect of
the freezing of this concrete and the precautions which
w r ere taken to prevent it is so abundant that other com¬
ment on this subject is unnecessary.
It is significant that while Magrini stated on direct
examination that thebricks used were 50 per cent “bats”
(Rec., p. 31) he was obliged to admit on cross-examina¬
tion that they were only 10 per cent or 15 per cent
“bats” (Rec., p. 46).
Credibility of Sprouse.
The Steel Company’s witness Sprouse had also been dis¬
charged by Karrick for incompetency (Rec., pp. 188, 239)
although he denies this (Rec., p. 189).
As showing how unreliable he is, he found himself un¬
able to mentally divide 60 by 3, and was only able to do
so on paper after repeated attempts. Even then he
stated that the beams, of which there were three, end to
end in the building 60 feet wide , were in some instances
22 feet long, and could only explain this statement after
he had divided 60 by 3, bv the statement that the beams
overlapped (Rec., p. 192), which is abundantly dis-
proven (Rec., pp. 219, 240). The witness stated that he
i
62
was on the work until October (Rec., pp. 185, 188),
whereas the time book shows that he was discharged
during the week ending August 25th (Rec., p. 194). Yet
he says that during that time precautions were taken to
prevent freezing (Rec., p. 187). He says there w T as a
good deal of freezing w T eather before Christmas of 1905
(Rec., p. 189).
It is submitted that not much reliance can be placed
upon the testimony of either Sprouse or Magrini, and
these are the only two witnesses adduced by the Steel
Company who knew anything about the work which was
being carried on upon that building.
No other cause for delay in the completion of this
building being shown (Rec., pp. 59, 64, 71, 77, 88, 100),
the conclusion is irresistible that it was due to the
failure of the Trussed Concrete Steel Company to deliver
steel in accordance with its contract (Rec., p. 136), and
inasmuch as freezing weather is one of the things wdiich
must have been contemplated by all parties at that
season of the year, the question is, is the Steel Company
responsible for damages caused to Mr. Karrick by at¬
tempting to proceed with his w'ork during the w’inter?
If this question is answered in the affirmative, then
the company is liable to Karrick for such damages as he
has sustained by reason thereof, such damages being set
forth in his cross-bill filed in this cause.
Evidence as to Warnings Given.
The letters from Karrick to the company on pages 267,
269, 271, 272, and 273 of the transcript of letters, ex¬
pressly warned the company that delay may be a serious
matter, “as the building regulations do not allow con¬
crete construction during freezing weather;” that “delay
will cause lots of trouble when the freezing weather
comes;” that “such delay has been a very serious matter
in more w f ays than that;” that “every day’s delay adds
63
to the difficulty and expense of the work;” and Mr. Kar-
rick stated that he was arranging canvas covers to use
to prevent the concrete from freezing.
Progress of Building.
It is admitted by all of the witnesses on both sides
that it would take the concrete longer to set in freezing
weather (Rec., pp. 59, 60, 83, 145, 212, 225, 227), and
the undisputed testimony (Magrini’s aside) is that there
was freezing weather from early in November until the
building was completed (Rec., pp. 254,255). There being
no dispute that prior to freezing weather floors were
actually constructed inside of two weeks (Rec., pp. 38,
59, 60, 145j 179, 212) (except for Sprouse's testimony,
who said it took eighteen days), there is no reason to
suppose that all of the floors might not have been put
in in that time if freezing weather had not set in.
The following statement, all of which is compiled from
the record in this case, shows the actual progress made
on this building, step by step:
Forms.
These (except for the extra half set made later) were
nearly all completed in May, 1905, a few being made in
June (Rec., pp. 79, 144, 155, 166).
Excavation and Foundations.
This was commenced May 11th, and the first steel
(which was received May 24, 1905) (Rec., p. 54), went
into the foundations (Rec., pp. 30, 143, 154, 144). The
side walls then went up (Rec., p. 80), the first brick be¬
ing laid in the week ending June 23 (Rec., p. 143). Only
a very small amount of work was done that week (Rec.,
p. 143). This was due partly to the fact that the corners
had to be laid and the building outlined and then
Karrick had to wait for the surveyor “to come and verify
64
the corners.” After the surveyor had made his examina¬
tion the bricklayers recommenced on the Monday of
the week ending June 30th. Work on the walls then
progressed (Rec., p. 143), and on the 6th or 7th of July
the building was up one floor (Rec., p. 98). Karrick
says he was not ready for any steel for the first suspended
floor before July (Rec., pp. 144, 174). This is partly
accounted for bv the evidence that about that time they
had a terrific rain which delayed them several davs,
softening the foundation (Rec., p. 147).
Second Floor (First Suspended Floor).
From Karrick’s letter to the company of July 14,1905,
it appears that he expected to get the first suspended
floor completed about the 1st or 19th of July (Rec., p.
260). The steel for this floor had been delivered June
7th, although it had been ordered to be delivered by
June 1st (Rec., pp. 54, 258).
Third Floor (Second Suspended Floor).
The record shows that he expected to commence on
this floor about July 24th, and to complete it about
August 1st to 3d (Rec., p. 260). The steel was on hand,
having been delivered June 7th (Rec., p. 54).
These two floors took longer to construct than was
re<|uired later, because the walls on these floors were
thicker and the workmen not so efficient (Rec., p. 159).
At this time it took about two weeks to construct a
floor complete, including brickwork, forms, and con¬
crete (Rec., p. 155).
Fourth Floor (Third Suspended Floor).
Karrick ordered the material for this floor to be de¬
livered by August 1~> (Rec., p. 262), but he found that he
65
was making such progress that he was actually ready for
it before that time (Rec., pp. 174, 264).
The steel was not received, however, until August 23d
(Rec., p. 54), eight days late, and when it came the fourth
and fifth floors had been shipped together, necessitating
a delay of two days more, due to the extra time con¬
sumed in separating the various parts belonging to each
floor respectively (Rec., pp. 174, 175).
Karrick makes no complaint about the delay in de¬
liveries up to this time, because up to this time the steel
had come as fast as he was readv for it, but from this
time on the steel was generally late, and as he was always
ready for it, this delay damaged him. If this and the
subsequent shipments had been delivered as ordered, his
building would have been under roof by October 25th,
twenty-one days ahead of his contract time (Rec., p.
236).
The delay on this floor was ten days.
Fifth Floor (Fourth Suspended Floor).
Karrick began to use this floor material September
12th (Rec., p. 266).
Sixth Floor (Fifth Suspended Floor).
Karrick was ready for this material September 28th
(Rec., pp. 175, 265), and one month before had ordered
it delivered by this date (Rec., p, 265), but it did not
arrive until October 14th (Rec.,p. 54), sixteen days late.
Seventh Floor (Sixth Suspended Floor).
The material for this floor was needed October 12th
(Rec., p. 175), and had been ordered delivered by that
date (Rec., p. 266), but did not arrive until October 27th
(Rec., p. 54), fifteen days late.
1568-5
60
Eighth Floor (Seventh Suspended Floor).
Karriek’s letter of October 14th shows that he expected
to be ready for the steel for the seventh suspended floor
by October 21st (Rec., p. 269). Rut owing to the delay
in the delivery of the material for the floor below, after
that was received, he did not think the next would be
needed until November 12th, and ordered it for that date
(Rec., p. 271); but he was actually ready for it before that
time (Rec., p. 175). The steel, however, did not arrive
until November 20th (Rec., p. 55), eight dags late.
Ninth Floor (Eighth Suspended Floor).
The material for this floor was ordered to be shipped
not later than November 14th (Rec., pp.272,175). It was
shipped November 16th (Rec., p. 274), and was not re¬
ceived until December 6th (Rec., p. 55). This was there¬
fore two dags late. Magrini testities that the work had
been completed on this floor before Christmas (Rec.,
p. 39).
Roof.
The roof steel was ordered on November 9th, to be ship¬
ped not later than November 28th (Rec., pp. 272, 175). It
was received December 12th (Rec., p. 55), and the main
roof was finished January 16th (Rec., p. 137). The build¬
ing was then all open except for the window frames on
the first floor in front (Rec., p. 91), and the doors had to
be put in the storage rooms (Rec., p. 94). Two floors
were completed and ready for storage on January 25th, at
which date the building was turned over to the Storage
Company (Rec., p. 178).
67
Computation Showing Number of Days Delay.
From the foregoing summary of the progress on the
building the delay appears to be as follows:
Fourth (third suspended) Hoor. . . .10 days
Sixth (fifth suspended) Hoor.16 days
Seventh (sixth suspended) Hoor. .. 15 days
Eighth (seventh suspended) Hoor. . 8 days
Ninth (eighth suspended) Hoor. ... 2 days
Number of days steel was late. . . .51 days
Extra week to enable concrete to
to set on eighth floor. 7 days
Extra week to enable concrete to
set on ninth floor. 7 days
Extra time to enable concrete to
set on roof. 5 days
Total delay..70 days
It is respectfully submitted that the lower court erred,
and that a decree should be entered awarding to'the
appellant Karrick the amount claimed in his original
and amended cross-bills.
WALTER C. CLEPHANE,
Solicitor for Appellant Karrick.
ALAN 0. CLEPHANE,
Solicitor for Other Appellants.
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